November 24, 2010

Summary of November 23, 2010 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Tuesday, November 23, 2010. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, (3) the Court has ordered depublished an opinion of the Court of Appeal, or (4) the Court has denied a Court of Appeal’s publication request. Note that, for the third straight week, Justice Kennard cast the only dissenting vote from an order denying review.

Review Granted


Review Denied (with dissenting justices)

Bay Guardian v. New Times Media, S186497—Review Denied [Kennard, J., voting for review]—November 23, 2010

This was an action by a weekly newspaper against a competitor, alleging unfair competition based on sales of advertising at rates below cost for the purpose of harming the plaintiff. The issues presented for review were (1) whether the ability to recoup losses following below-cost pricing is an essential element of proof of a violation of Business and Professions Code section 17043, the anti-predatory pricing provision of the Unfair Practices Act (Bus. & Prof. Code, § 17001 et seq.), and (2) whether the trial court improperly instructed the jury on the statutory presumption of an improper purpose to demonstrate a violation of section 17043.

The Court of Appeal, First District, Division One, held in a published opinion, Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, that (1) section 17043 does not require proof of the defendant’s ability to recoup losses, or proof of intent to injure multiple competitors, as opposed to just a single competitor, and (2) the jury was properly instructed that “If you find that any defendant sold advertising space below cost, and any below-cost sales injured the [plaintiff] as a competitor, it is presumed that defendants’ purpose was to injure competitors and destroy competition. But this presumption may be overcome by other evidence.”



Court of Appeal Publication Request Denied


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