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POKEMON MAKER SEEKS DISMISSAL OF NUISANCE & DISGORGEMENT SUIT

Tim Kowal April 24, 2020

Pokemon Go-maker Niantec moved to dismiss the class action that alleges the wildly popular app causes droves of users to trespass on private property in order to find, buy, and play with in-game prizes. Niantec points the finger at its users, insisting the game maker is not responsible for what users do since it displays disclaimers telling them not to trespass.

But as we've written, trespass does not require knowledge of the plaintiff's ownership, or knowledge of the entry, as long as the trespass is foreseeable. "An entry may also be accomplished by setting in motion an agency which, when put in operation, extends its energy to the plaintiff's premises to its material injury." (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301.) Thus, even a hacker's electronic signals have been held to be a trespass. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566, fn. 6.). "Trespass may be '"by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person . . . ."'" (Martin Marietta Corp. v. Insurance Co. of N.A. (1995) 40 Cal.App.4th 1113, 1132.)

The hearing is set for May 4.

You can find our articles on this story at our California Trespass Law site.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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—T.H. White, The Once and Future King

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"A judge is a law student who grades his own papers."

— H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

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POKEMON MAKER SEEKS DISMISSAL OF NUISANCE & DISGORGEMENT SUIT

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"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"A judge is a law student who grades his own papers." — H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia