CELLPHONE FEE TERMINATION CASES
Filed 3/3/11
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| CELLPHONE FEE TERMINATION CASES. | A124077 A124095 A125311 (Alameda County Super. Ct. No. RG03121510, JCCP No. 4332) |
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STORY CONTINUE FROM PART II….
There was nothing hypothetical about the claims which Sprint asserted, and the claims were presented in the context of an actual set of facts. They arose out of precisely the same contracts which were the basis for the Plaintiffs' claims. If Sprint prevailed on Plaintiffs' complaint and the ETF's were valid liquidated damages, Sprint would be limited to recovery of that amount. But if the ETF's were invalidated, as they were, then Sprint was entitled to recover its actual damages arising from the breach of those contracts. (Garrett, supra, 9 Cal.3d at pp. 740–741.) While Sprint's claims may have been contingent and alternative, they were not hypothetical.
Plaintiffs claim that this case is similar to Babb v. Superior Court (1971) 3 Cal.3d 841 (Babb). It is not. Babb was a medical malpractice action in which the defendant sought to pursue a cross-complaint for malicious prosecution, seeking a declaratory judgment that if the plaintiff's case terminated in his favor, it would have been prosecuted maliciously and without proper cause. The Supreme Court granted a writ of mandate directing the trial court to sustain the plaintiff's demurrer without leave to amend. (Id. at pp. 851–852.) The court relied on â€
| Description | These consolidated appeals are from a judgment after trial in a consumer class action against wireless telephone carrier Sprint Spectrum, L.P. (Sprint), challenging its policy of charging early termination fees (ETF's) to customers terminating service prior to expiration of defined contract periods.[1] The trial court found the ETF's to be unlawful penalties under Civil Code section 1671, subdivision (d),[2] enjoined enforcement, and granted restitution/damages to the plaintiff class in the amount of ETF's collected by Sprint during the class period, $73,775,975. A jury found that class members who had been charged ETF's had violated the terms of their contracts with Sprint, and that Sprint's actual damages exceeded the ETF charges Sprint had collected. The resulting setoff negated any monetary recovery to the class. The trial court, reasoning that the jury had failed to follow its instructions on Sprint's actual damages, granted the plaintiffs'[3] motion for a partial new trial new on that issue. Sprint appeals the decision invalidating the ETF's and enjoining their enforcement, and the court's grant of the motion for partial new trial on damages. Plaintiffs cross-appeal, alleging that the trial court erred in permitting Sprint to assert damage claims as setoffs to class claims for recovery of ETF's paid. In the published portions of this opinion we address the issues of federal preemption and the application of section 1671, subdivision (d). We affirm in all respects. |
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