LEGAL MEMOS

Haidet v. Del Mar Woods Homeowner’s Association (2024) 106 Cal.App.5th 530. Two condo owners filed an action against an HOA alleging that their upstairs neighbors improperly installed floors which were a nuisance. The trial court sustained a demurrer by the HOA with leave to amend. The owners opted not to amend their claims against the HOA, instead filing an amended Complaint naming only other defendants. The owners sought to dismiss the HOA without prejudice while the HOA filed a Motion to Dismiss with prejudice, which the trial court granted and the Court of Appeal upheld saying that the trial court’s action was authorized under CCP§ 581(f)(2) because the owners did not timely amend their Complaint against the HOA.

Rodriguez v. LVNV Funding Inc. (2024) 106 Cal.App.5th 717. This is a case which started off as a debt collection action with the Plaintiff suing the Defendant to collect a debt. The Defendant filed a Cross-Complaint claiming that she was a victim of identity theft and the debt collection action filed by the Plaintiff violated the Fair Debt Collection Practices Act on both a State and Federal level. The Plaintiff was ultimately convinced that it had sued the wrong Defendant and dismissed the action against the Defendant. The Defendant however declined to dismiss the cross-claim. Plaintiff then brought a SLAPP motion which the trial court granted but the Court of Appeal reversed concluding that the filing of the Cross-Complaint by the Defendant was protected activity and that the claims in the Cross-Complaint had at least minimal merit. Because the Fair Debt Collection Practices Act imposes strict liability on causes of action for attempts to collect a debt that misrepresent or falsely present the character or amount of a debt owed, and while there was a narrow affirmative defense for bona fide mistakes that a debt collector may make, there was no suggestion that Plaintiff sought or could demonstrate such a defense here, and because the claims had minimal merit, the SLAPP motion should not have been granted.

Young v. Hartford (2024) 106 Cal.App.5th 730. This was a case in which the Probate Court suspended the powers of a Trustee and appointed an Interim Trustee imposing a bond and prior authorization requirements on the Interim Trustee. The original Trustee appealed but the Court Appeal dismissed the appeal and also denied a motion for sanctions. The Court held the suspension was not appealable because suspension of a fiduciary’s power is not a removal order made appealable by statute under Probate Code § 1300(g) nor does appointing an interim trustee fall within the scope of appealable orders authorizing, directing or approving a fiduciary’s act under Probate Code § 1300(c). These remedies are provisional only and are not therefore final and therefore not subject to appeal.

The Comedy Store v. Moss Space Adams LLP (2024) 106 Cal.App.5th 784. In this case the Plaintiff sued an accounting firm alleging that the firm’s accidental omissions had caused it to miss the deadline to apply for a grant for businesses shuttered by COVID-19 and claimed gross negligence, negligent misrepresentation, constructive fraud, breach of fiduciary duty and unfair competition. The accounting firm filed a motion to dismiss. There was a forum selection clause in the representation agreement that the accounting firm had which provided that venue and jurisdiction would be in Washington State. The Plaintiff challenged that because it took away a jury trial right that they would have had in California. The Court of Appeal agreed with the Plaintiff finding that enforcing the forum selection clause resulted in an improper, partial severance of the jury trial waiver and allowing for a severance would only encourage the accounting firm to continue with the improper procedure of placing venue in the State of Washington. The accounting firm had offered to stipulate to some jury trial rights, but the Court of Appeal found that this was again something that created a public policy problem and encouraging the accounting firm to include the Washington venue language which might jeopardize California’s jury trial rights.

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