Developments of Interest

New Cases of Interest - January 13, 2015

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Drell v. Cohen (2014) 232 Cal.App.4th 24.  This is a SLAPP case arising in the context of a personal injury action in which the plaintiff's new counsel sought by declaratory relief to determine the status of an attorney fee lien obtained by plaintiff's former counsel.  The former counsel brought the SLAPP motion.  The SLAPP motion was denied and the denial was affirmed by the Court of Appeal with the Court of Appeal holding that the SLAPP motion was properly denied in that the declaratory relief action did not arise from protected activity.  While the declaratory relief action necessarily referred to the attorney fee lien the complaint did not seek to prevent assertion of that lien and none of the purposes of the SLAPP statute would be served by applying it to the declaratory relief action which involved the requirement that a party demonstrate the probability of success on the merits.
California Bank & Trust v. Del Ponti (2014) 232 Cal.App.4th 162.  This is an interesting case involving a matter in which a bank sued two guarantors following a trustee sale on a deed of trust.  The guarantee included the normal gamut of guarantor waivers and the Court of Appeal determined that while certain statutory rights may be waived, the waiver does not extend to actions of the lender which are in violation of public policy.  The court was particularly concerned about the reported waiver of equitable defenses, such as unclean hands, and determined that defenses of this nature would not be deemed to be waived by the waiver language contained in the guarantee.  There would also be no waiver of any defense that the lender had engaged in fraud or willful misconduct as that also would constitute a violation of public policy.

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