Harris v. Time, Inc.

191 Cal. App. 3d 449 (1987)

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Nature of the Case

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Facts

Joshua, a three-year-old got a tantalizing offer in the mail from D. The envelope revealed the following statement: 'JOSHUA A. GNAIZDA, I'LL GIVE YOU THIS VERSATILE NEW CALCULATOR WATCH FREE Just for, Opening this Envelope Before Feb. 15, 1985.' Joshua's mother opened the envelope and realized when the full text was revealed it contained following additional words: 'AND MAILING THIS CERTIFICATE TODAY!' Joshua was required to purchase a subscription to Fortune magazine in order to receive the free calculator watch. D had merely tricked P’s mother into opening piece of junk mail. P's father was a public interest attorney and sued Time (D). Before commencing litigation, P demanded that he get the calculator watch without subscribing. That request was refused. P launched a $15 million lawsuit in San Francisco Superior Court. The complaint alleged one cause of action for breach of contract, three causes of action for statutory unfair advertising, and four causes of action for promissory estoppel and fraud. D demurred for failure to state facts sufficient to constitute a cause of action. The court sustained the demurrer. D also obtained summary judgment on the causes of action for unfair advertising. P appealed.