In Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc., 203 Cal.App.4th 913 (Feb. 23, 2012), a homeowners' association filed a UCL and FAL action against the real estate agents who marketed the parcels of land purchased by the association's owners, alleging various misrepresentations and nondisclosures regarding soil conditions and the parcels' susceptibility to damage from soil displacement. Id. at 867-69.
The Court of Appeal (Second Appellate District, Division Eight) held that the homeowners' association had suffered "injury in fact" and "lost money or property" sufficient to confer Prop. 64 standing. It found these monetary losses sufficient:
- investigative costs associated with the repair and replacement of the damaged common area improvements ... ;
- the amount to properly landscape the manufactured slopes of common areas that were not landscaped and/or were not properly landscaped with an adequate quantity or correct type of planting materials, irrigation, and drainage systems;
- the amount omitted from the budgetary analysis that is required to stabilize and perform the repair, restoration, and construction of the common areas, common area slopes, and common roadway.
Id. at 871. The same facts were sufficient to establish the association's standing under Civil Code section 1368.3, which empowers homeowners' associations to bring certain types of litigation. See id. at 870. The association was required to satisfy both standing requirements (section 1368.3 and Prop. 64).
The most interesting part of this decision is its holding that the association's "investigative costs" were sufficient to confer Prop. 64 standing. That holding is certainly consistent with Kwikset, which speaks of an "identifiable trifle" or "nontrivial amount" of economic injury, and goes on to hold that the loss need not be recoverable as restitution. Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310, 324-25, 335-37 (2011). (Although I'm not sure, under these facts, what the association could ultimately recover from the agents in a UCL/FAL action, except perhaps their commissions.)