~

li~\ t:: 1vD~E. GJ~V€. M€ SUPERIOR COURT OF SAN LUIS OBISPO COUNTY \ t-J."S."n~U C.'\"\ C N S ON 1-l\0\rJ r San Luis Obispo Branch, 1035 Palm Street, Rm 385, San Luis Obispo, CA93408

X Grover Beach Branch,214 South 16th Street, Grover Beach, CA93433 IC ~E. 'i.U~I1"'11 -r \-1\'( CA~L:.. r Paso Robles Branch549 1Oth Street, Paso robles, CA 93446 AN\) 1\.J~N.E:.,D AL-L PR10R

ALAN AHERN Plaintiff "QOC.UM~'Wl"S C>\/1:: RiO -ALAN A\-{ E~'NE ::rw~ ~~"

vs - ------ . -- -·-- -· '\o -~~ '0 1Pt<J-rl a ''rA'f :E-\\1 "'~ KATHY HUSEN Defendant

Mt:Ci'l N~. )J \"i ~ 6w NC~ ~ ~ '~\:; m"~.st&;:t-.tr ~,..c..L o~~ Tblt

RULING ON COURT TRIAL OF 4/24/8 ~O"T' >~~~N_R H'l' 1'-110,.,~ 'i \I '-.lP'\'$' g,.

CASE NO: SC 086030

The short answer to the plaintiff's chiirrri3 that he has sued the wrong persons. The defendants are simply 1/6 owners, like him, in the Park Avenue Townhouses in Pismo Beach. There is no contractual or statutory relationship between them and him. They owe him no duties. The homeowners' association has paid for the,tnaintenance of exclusive use portions ofthe common area appurtenant to Units 6 and 1. If the HOA did so against the CC&Rs, defendants might owe some money to the HOA. But defendants do not owe money to the other owners, including plaintiff.

As an aside, an action by the HOA against the owners of Units 1 and 6 is not guaranteed success. The CC&Rs specifically acknowledge that there are restricted common areas, i.e., exclusive use portions of the common areas, that relate to Units 1 and 6. (Art. 1, sec. 17) Then, under Maintenance, Art. VI Duties of the HOA, the HOA is required to maintain the common areas, including the landscape, but not any private area yards maintained by the owners. "Private yards" are not defined in the CC&Rs nor are they noted on any diagrams or schematics. Thus, the CC&Rs having defined the areas next to Units 1 and 6 as portions of the common area, it would seem the HOA is obligated to maintain them.

The picture beCO!fies muddled, however, when one sees in the General Provisions, Art. IX, at sec. 4 Owner's Right and Obligation to Maintain and Repair that "each unit owner shall, at his sole cost and expense, maintain and repair his unit, and shall maintain the landscaping within any private yard area appurtenant thereto which is part of the restricted common area." Furthermore, someone thought this might be a problem for Units 1 and 6 in 1992 and caused the First Amendment to the CC&Rs to be filed. The validity of the amendment vis a vis procedure for passage, is brought into doubt by Attorney Geihs observations.

Even if the HOA was successful in recouping money from the owners of Units 1 and 6, it does not mean that the other owners would get a refund. The Board might decide to keep the money in its reserve account.

Plaintiff faces a long uphill battle to vindicate his concerns .

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resolution are Civil Code§§

ILING

n owner, or by the governing

ecover his/her tments broaden

in all disputes enforcement of 11ch provisions, attorneys fees

.rbitration, and.

.eys' fees if the oncerns but no es where a right m as well as in 1.810-1363.850

officer, director, 10kkeeper. For

eeding by board >fficer, director, ctlement without can be reached Jtion approving :able, an officer t and represent

Overview of Condominium Law 85

that the board has authorized the settlement. Representations of board authorization by the property manager, an insurance representative or an attorney without an officer or director being present are insufficient to create a binding settlement agreement. See Code of Civil Proced,ure § 664.6; Elnekave v. Via Dolce Homeowners Association (2006) 142 Cal.

App.4th 1193; 48 Cal.Rptr.3d 663.

C.o \4 D~ 13LUC ~.:>\C.. 'LD\ '5. ?A~'L '\ 3 XIV. DISPUTES BETWEEN INDIVIDUAL OWNERS

A. HOA'S OBLIGATION TO ENFORCE GOVERNING

DOCUMENTS

In general, homeowners ' associations have discretion whether or not to enforce the governing documents. This discretion is removed, and enforcement mandatory, in instances where the governing documents explicitly require association action. Regardless of whether enforcement is mandatory, however, it is usually advisable for the association to act in order to avoid future enforcement problems. See Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App. 3d 858, 13 7 Cal.Rptr. 528; Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 16 Cal.Rptr.2d

816.

B. OWNER AUTHORITY TO ENFORCE GOVERNING DOCUMENTS AGAINST ANOTHER OWNER

Each owner in a condominium project or planned development has the right to independently enforce the CC&Rs against any other owner. A governing document other than the CC&Rs may be enforced by the association against a violating owner or by an owner against the association, but not by an owner against another owner. The mechanism for enforcement is either the court system or alternative dispute resolution depending on the nature of the violation and the dispute resolution provisions of the governing documents. In any action to enforce the governing documents, the prevailing party is entitled to recover reasonable attorney's fees and costs. For additional information, see Civil Code § l354(a), in Chapter 2, and Posey v. Leavitt (1991) 229 Cal.App.3d 1236,

280 Cal.Rptr. 568.

'Alan Aherne, Plaintiff versus Kathy Huben Defendant'

Based on our CC&Rs page 732 statements, we hired the services of Paul

, A. Geihs, whom I believe to be a former Pismo Beach City Attorney.

Copies of that Opinion letter dated June 6, 2007 were sent to all

Owners and to B & W Management. When B & W Management refused

to comply with our Attorney's findings, and instructed the Business

Owners not to respond to the Court Mediator, but instead continued to

threaten me with a Pre-lien Notice to foreclosure on my home, and

subsequently damage my credit rating if I did not start mailing my

monthly dues to them, and include an amount for their employer's

Exclusive Yards, instead of depositing them to our HOA Bank Account

as we have done for sixteen (16) years.

Under the authority of Civil Code 1354 we filed a case against the

owners of lot 6 in Small Claims, and as a result we were able to obtain

• copies of the falsified Bank Signature card, and B & W Management's

document referred to as, ~he Second Amendment' to the CC&Rs.

The Judge declined to rule on the case and returned all Court

Documents to the Plaintiff, believing that there is no contractual or

statutory relationship between the Defendents and the Plaintiff.

The returned Court Documents contained a complete copy of the Park

Avenue CC&Rs, page 737 of that document under section Enforcement

and Nonwaiver: A. Right of Enforcement: Except as otherwise provided

herein, the Association and/or any owner of any unit shall have the

right to enforce any or all of the provisions of this Declaration upon

any property within the project and the owners thereof.

•

•

•

On page 85 of the 2007 Condominium Bluebook under paragraph B .

'OWNER AUTHORITY TO ENFORCE GOVERNING DOCUMENTS AGAINST

ANOTHER OWNER'.

Each owner in a condominium project or planned development has the

right to independently enforce the CC&Rs against any other owner.

Page 97 Condominium Bluebook 2007: Civil Code 1354(a) Covenants

And Restrictions In Declaration; Enforcement.

B &W Management, in violation of their fiduciary obligation to the

Business Operators that own Units 3 and 5, and the Resident Owners of

Units 2 & 5, is continuing to refuse to file, on behalf of the HOA, against

her other employers that own Unit 1 and lot 6 .

As substantiation for the above claim I have enclosed Kathy Huben, and Susan

• Amidon's outstanding expense claims. Both Unit's 6 and 2 expenses were

generated by the fact that B & W Management failed in their fiduciary

responsibility to sue on behalf of the Association to recover the misappropriated

private exclusive yard maintenance costs~ Additionally, B & W Management is not

authorized to collect expenses generated by their refusal to comply with our

CC&Rs requirements.

•

Contrary to Janet's illogical statement that, I the State Statute requiring

Presidents/Directors to be residents, that became Law effective January 1st 2007,

does not apply because it is not in the 1990 Park Avenue Townhome CC&Rs'

A Nonresident Owner operating a Hotel/Motel business operation, in violation of

our CC&Rs, while claiming to be a member of a three person Board of Directors

operating under the Bylaws of a Corporation, is absolutely absurd.

Your Declarant obsolete Bylaws require that you file an annual report with the

State, please send me a copy. The HOA is required to give a copy of the tax filing

to all owners, does it say we are a Corporation?

Ron Mendes, a leading figure in the conspiracy to block reimbursement of the

misappropriated Exclusive Yard dues, claims that our HOA official Bylaws are

invalid because they were not registered with the State, and that that gave the

Conspiracy the authority to seize control of all of our HOA accounts, and block us

from getting any information on our savings, or the way in which our money is

being spent during the past 22 months, while members of the Conspiracy held

meetings, and approved Motions when the minimum of four Unit representatives

were not present to establish a Quorum.

The Hotel/Motel operator's adoption of the Corporation Bylaws took away my

voting rights according to Claudia Keith, and Janet Wood of B & W Management.

Therefore, all the harassment my Wife and I have been subjected to, and all the

financial damages we have suffered due to the Hotel Operators actions must be

recovered. The State Statutes copied below substantiate our position. b. Bylaws

Bylaws may be amended by the board of directors or the owners depending upon which is given the power to amend. Bylaws specifically autho~zing amendment by board action alone are rare. _ _ b laws re mre owner approval of an amendment. The only

5~ry ::._~irement for owner approva is when the amendriieiit: ma enaify and ~d~el~ affects the voting rights, dissolution, transfer or st_arus o!membershi ~; changes the number or teuns of directol"$; increases quorum reqmrements; affects proxf rights; or affects cumulative voting provisions. or termination of the association. See

Bylaws do not have to be filed with the California Secretm of State or recorded with the countY recorder. Some bylaws have been recorded because they contain provisions usually found in CC&f{s or may be combined with the CC&Rs in a single document. If bylaws have been improperly recorded, they should be separated from the CC&Rs when the documents are next revised.