Wednesday, December 17, 2014

Back to the Memory Hole

J.B.B. Inv. Partners, Ltd. v. Fair, No. A140232 (D1d2 Dec. 5, 2014)

This was an interesting and novel opinion that addressed whether a party’s alleged email assent to a settlement agreement complied with California’s Uniform Electronic Transactions Act, Civil Code §1633.1, et seq.  Suffice it to say, the body of law interpreting that Act is rather thin. The statute is barely mentioned in passing a couple of published cases. Indeed, the only published decision of substance addresses a not-generally-applicable issue regarding whether an electronic signature can be used on an ballot initiative petition. Notably, the statute is not all that clear on the key question at issue in this case: when and how can people bind themselves to a contract by email. The issue would seem to come up all the time, but it is unaddressed by any citable California case.

It was thus puzzling, to say the least, that a few hours after this erstwhile published decision was posted, the court issued a modified opinion claiming that it “does not meet the standard for publication as set forth in rule 8.1105(c) of the California Rules of Court” and thus that it should be withdrawn from publication. Apparently, Rule 8.1105(c)(4), which requires publication when an opinion “[a]dvances a new interpretation, clarification, criticism, or construction of a provision of a . . . statute,” doesn’t mean what it says.

There’s clearly a back story here. But on the face of it, it seems fishy.

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