California
Appeals
Standard of Review
Motion to Amend

Standard of Review-Denial of the motion for leave to file a second amended complaint Ball v. Fleetboston-G038894

Introduction

Did the trial court abuse its discretion in denying a motion for leave to file a second amended complaint that would have raised causes of action for violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) (CLRA), and for declaratory relief?  We conclude it did not, as explained ante, and we therefore affirm.

Plaintiff Susanne Ball alleged Bank of America, the successor in interest to FleetBoston Financial Corporation and Fleet National Bank (collectively, Fleet), violated the CLRA by including unconscionable arbitration provisions in its credit card agreement.  This court has previously determined, however, that the CLRA does not apply to the issuance of a credit card.  (Berry v. American Express Publishing, Inc. (2007) 147 Cal.App.4th 224, 227 (Berry).)

Ball’s cause of action for declaratory relief seeks a judicial declaration regarding the same allegedly unconscionable arbitration provisions in the credit card agreement, and, by virtue of the allegations made in the complaint, is wholly derivative of the cause of action for violation of the CLRA.  The trial court was correct in denying the motion for leave to amend.

Statement of Facts and Procedural History

On August 13, 2004, Ball sued Fleet for violation of the unfair competition law, Business and Professions Code section 17200 et seq. (UCL).  Ball alleged Fleet’s standard form credit card agreement was a procedurally unconscionable contract of adhesion, and was substantively unconscionable in that it required binding arbitration of any disputes, required the credit card account subscriber to give up the right to class action arbitration, and permitted Fleet to make unilateral modifications to the agreement without the consent of the subscriber.  Ball admitted she did not have an account with Fleet, but was bringing the lawsuit on behalf of the general public.

After the passage of Proposition 64, which imposed new standing requirements on UCL cases, Ball filed a first amended complaint.  The first amended complaint alleged additional claims of substantive unconscionability.  In the first amended complaint, Ball continued to allege she was not a Fleet credit cardholder, and had no contractual relationship with Fleet. 

The case was stayed pursuant to a stipulated order.  The stay was lifted after the California Supreme Court issued its opinion in Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223.  At the case management conference at which the stay was lifted, Ball’s counsel acknowledged Ball no longer had standing to sue under the UCL.

On September 6, 2006, Ball opened a credit card account with Bank of America.  On December 22, 2006, Ball filed a motion for leave to file a second amended complaint.[1]  The proposed complaint would have asserted causes of action for violation of the CLRA, and for declaratory relief.  The proposed complaint would also have alleged that Bank of America was the successor in interest to Fleet, and named Bank of America as a Doe defendant.[2]  The trial court denied the motion for leave to amend, concluding Ball could not seek relief under the CLRA based on a credit card agreement, citing Berry, supra, 147 Cal.App.4th 224.  Judgment was entered, and Ball timely appealed.

Discussion

I.

Standard of Review

We review the trial court’s denial of the motion for leave to file a second amended complaint for an abuse of discretion.  (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) 

Ball v. Fleetboston 6/5/08 CA4/3-G038894

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