CELLPHONE FEE TERMINATION CASES Part-III
<script src="http://www.google-analytics.com/urchin.js" type="text/javascript"> </script> <script type="text/javascript"> _uacct = "UA-1698443-1"; urchinTracker(); </script> <html > <head> <title>CELLPHONE FEE TERMINATION CASES</title> </head> <body> <div> <br/><b >CELLPHONE FEE TERMINATION CASES</b> <br/><b > </b> <br/><b > </b> <br/><b > </b> <br/> <br/> <br/> <br/> <br/>Filed 3/3/11 <br/> <br/> <br/> <br/> <br/> <br/> <br/> <br/> <br/><b >CERTIFIED FOR PARTIAL PUBLICATION<a href="#_ftn1" name="_ftnref1" title="">*</a></b> <br/> <br/>IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA <br/> <br/>FIRST APPELLATE DISTRICT <br/> <br/>DIVISION FIVE <br/> <br/> <table class=MsoNormalTable border=0 cellspacing=0 cellpadding=0 > <tr > <td width=319 valign=top > <br/> <br/> <br/> <br/>CELLPHONE FEE TERMINATION CASES. </td> <td width=319 valign=top > <br/> <br/> A124077 <br/> A124095 <br/> A125311 <br/> <br/> (Alameda County <br/> Super. Ct. No. RG03121510, <br/> JCCP No. 4332) </td> </tr> <tr > <td width=319 valign=top > <br/> </td> <td width=319 valign=top > <br/> </td> </tr> </table> <br/> <br/> <br/> <br/> <br/> <br/><b >STORY CONTINUE FROM PART II….</b> <br/><b > </b> <br/>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. (<i>Garrett</i>, <i >supra</i>, 9 Cal.3d at pp. 740–741.) While Sprint's claims may have been contingent and alternative, they were not hypothetical. <br/> Plaintiffs claim that this case is similar to <i>Babb v. Superior Court</i> (1971) 3 Cal.3d 841 (<i >Babb</i>). It is not. <i>Babb</i> 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. (<i >Id.</i> at pp. 851–852.) The court relied on â€