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New Cases of Interest - December 1, 2014
Lunada Biomedical v. Nunez (2014) 23 Cal.App. 4th 459. This is another SLAPP case. The SLAPP motion was filed by a consumer who had sent a notice under the Consumer's Legal Remedies Act claiming that a company's advertisement was false and misleading and sought to strike the company's complaint for declaratory relief. The court held that a declaratory relief action against a consumer based on a CLRA notice is precluded as a matter of law and therefore the SLAPP motion was properly granted because the company could not demonstrate a probability of prevailing.
Kan v. Guild Mortgage Company (2014) 230 Cal.App. 4th 736. This is another string of cases challenging the proper assignment of an obligation secured by deed of trust. In this case the demurrer to the borrower's complaint was sustained without leave to amend based on the allegation that the transfer of the deed of trust interest was not compliant with the investment trust servicing and pooling agreement. The court upheld dismissal of the action finding that the borrower had no legal basis to assert any challenge to the authority of the entity initiating the foreclosure process and that such a challenge was inconsistent with the public policy supporting non-judicial foreclosure and providing a quick inexpensive and efficient remedy. The court found that the borrower lacked standing, and did not dispute either the terms of the deed of trust allowing for an assignment, or that the loan was in default.