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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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November 22, 2021

Drink Tank Ventures v. Real Soda in Real Bottles (Nov. 10, 2021, B298881)

One business sued another for the tort of intentional interference with prospective economic advantage. Ultimately, the plaintiff's case was based solely on a claim that the defendant business had breached a nondisclosure agreement. Under Supreme Court precedent, the plaintiff’s theory was invalid as a matter of law because the alleged breach of contract, without more, was not “wrongful conduct” capable of supporting the plaintiff’s intentional interference claim. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551–552; Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 54.)

The defendant did not object to the validity of plaintiff’s legal theory and the case went to a jury verdict in plaintiff’s favor. The Court of Appeal held that the trial court had no jurisdiction to enter a judgment on the jury’s verdict because “a trial court . . . lacks subject matter jurisdiction to enter judgment for allegedly tortious conduct, fashioned by common law, that our Supreme Court has determined is not tortious.” Moreover, the court held, “[b]ecause a party’s conduct cannot confer subject matter jurisdiction upon a court, the defendant’s delay in objecting is irrelevant.” Accordingly, the Court of Appeal reversed the judgment with directions to dismiss plaintiff’s case.