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New Cases of Interest - May 2, 2011
Countryside Villas Homeowners Association v. Ivie (2011) 193 Cal.App.4th 1110. This was a declaratory relief action initiated by a homeowners association against an individual homeowner in which the individual homeowner subsequently filed a SLAPP motion. The homeowner had publicly criticized the management of the Association, going so far as to suggest that the Board should be recalled, and also requested copies of Association financial information. The Association’s declaratory relief complaint against the owner, as well as other residents, sought an interpretation of its governing documents. The SLAPP motion was granted, and upheld by the Court of Appeal.
One of the issues was the timeliness of the motion which was filed within 60 days of the filing of an amended complaint. The court held that that amended complaint was a substantive change, because it added a verification of compliance with Civil Code Section 1369.560, and began anew the 60 day period for filing a SLAPP motion. The owner’s criticism of the management was clearly a protected activity and raised issues of public interest for all of the Association’s members. The court also determined the Association had no probability of prevailing because the owner was not an appropriate defendant in a declaratory relief action, and no other relief was sought from the owner.
Tverberg v. Fillner Construction, Inc. (2011) 193 Cal.App.4th 1121. This was a case in which an independent contractor hired by a subcontractor on a construction project was injured when he fell into a bollard hole. The independent contractor then sued the general contractor. The court found that there was a triable issue of fact with respect to the general contractor’s conduct in that there was an allegation of negligent exercise of the control which had been retained by the independent contractor in such a way that the exercise of that control contributed to the general contractor’s injury, and the case was therefore not appropriate for summary judgment on behalf of the general contractor.