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Filed in anticipation of small claims hearing, on plaintiff's lawsuit to gain access to HOA's 2009 financial transactions, 2011 insurance coverage, and for civil penalties, costs of suit and attorney fees.
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Page 1_______________________
PLAINTIFF’S TRIAL BRIEF
RICHARD SAKAI 11310 Summertime LaneCulver City, CA 90230(310) 916-8147
PlaintiffIn Propia Persona
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
SMALL CLAIMS JURISDICTION
RICHARD SAKAI,
Plaintiff,
vs.
LAKESIDE VILLAGE CONDOMINIUMASSOCIATION, INC., a California MutualBenefit Nonprofit Corporation,
Defendant.
)))))))))))))
CASE NO. 11A00248
PLAINTIFF’S TRIAL BRIEF
Trial Date: May 6, 2011Time: 1:30 P.M.Place: West District “G”
TO: THE CLERK OF THE ABOVE-ENTITLED COURT, AND TO DEFENDANT:
COMES NOW the Plaintiff, RICHARD SAKAI, and submits the following Memorandum
of Points and Authorities as a Trial Brief of pertinent issues before this Honorable Court:
Respectfully Submitted,
DATED: __________________________________________ RICHARD SAKAI Plaintiff, In propria persona
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Page 2_______________________
PLAINTIFF’S TRIAL BRIEF
MEMORANDUM OF POINTS AND AUTHORITIES
I.THE PARTIES
The Defendant LAKESIDE VILLAGE CONDOMINIUM ASSOCIATION, INC.
(hereinafter referred to as the “ASSOCIATION”) is a California mutual benefit non-profit
corporation founded and organized for the purpose of managing a “condominium project” as
defined by the California Davis Stirling Act (Civil Code §1350 et seq.). It is commonly known
as “Lakeside Village” in Culver City, and has 530 condo homeowner/members. Pursuant to the
governing documents of the Defendant, a Board of Directors, elected by the members of the
ASSOCIATION, possesses the ultimate decision-making authority for the operation of the
ASSOCIATION.
The Plaintiff is a resident and a title holder of a condominium at Lakeside Village. He
can produce for the Court a grant deed with an original recording stamp from the Office the
County Recorder of Los Angeles County, or there will be a stipulation between the parties,
indicating that he holds a 1/5 undivided interest in a condominium at Lakeside Village. By virtue
of such title, it is expected that the Plaintiff will provide proof, or there will be a stipulation, that
Plaintiff's title to a condominium at Lakeside Village confers upon him membership in the
ASSOCIATION under the terms of the governing documents of the ASSOCIATION and under
the terms of the Davis Stirling Act.
There should be no controversy at trial about Plaintiff holding full rights as a
titleholder/member of the defendant condo ASSOCIATION. For three successive two-year terms,
ending in December, 2009, the Plaintiff ran for, and was elected to a position on the Board of
Directors of the defendant condo ASSOCIATION, and he held several corporate offices while
serving, including that of President. Only homeowners/members of the defendant condo
ASSOCIATION are eligible for such positions.
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1 The Plaintiff requests that the Court take judicial notice that the Defendant condoASSOCIATION is the same condo association as the Defendant/Respondent in the case ofNahrstedt v. Lakeside Village Condominium Association Inc. (1994) 8 Cal.4th 361.
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PLAINTIFF’S TRIAL BRIEF
II.PLAINTIFF'S HOMEOWNER RIGHTS
TO INSPECT AND COPY THE DEFENDANT CONDO ASSOCIATION'S RECORDS
As has been well established in the law, and as should be abundantly clear to this
Defendant, fiduciary duties are owed by the Defendant ASSOCIATION to Plaintiff, who is a
member of the Defendant ASSOCIATION. Nahrstedt v. Lakeside Village Condominium
Homeowner Association Inc. (1994) 8 Cal.4th 3611, 3831; Frances T. v. Village Green Owners
Assn. (1986) 42 Cal.3d 490, 513-514. The individual members of the Board of Directors, who
are charged with the ultimate decision-making authority for the operations the ASSOCIATION,
owe a fiduciary duty of care to the membership of the ASSOCIATION. Chantiles v. Lake
Forest II Mater Homeowners Assn. (1995) 37 Cal.App4th 914.
As our Supreme Court has recognized, owners of units in a condominium project
comprise a little democratic subsociety." Nahrstedt, supra, 8 Cal.4th, at 374. See Cohen v.
Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 651. In exchange for the benefits of
common ownership, the residents elect a legislative/executive board and delegate powers to this
board. This delegation concerns not only activities conducted in the common areas, but also
extends to life within "the confines of the home itself." Nahrstedt, supra, 8 Cal.4th at 373. A
homeowners association board is in effect "a quasi-government entity paralleling in almost every
case the powers, duties, and responsibilities of a municipal government." Cohen v. Kite Hill
Community Assn., supra, 142 Cal.App.3d at 651.
Because of a homeowners association board's broad powers and the number of individuals
potentially affected by a board's actions, the Legislature has mandated that such boards hold open
meetings and allow the members to speak publicly at those meetings. Civil Code §§ 1363.05,
1363, 1350-1376. These provisions parallel California's open meeting laws regulating
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Page 4_______________________
PLAINTIFF’S TRIAL BRIEF
government officials, agencies and boards. Gov. Code, § 54950 et seq, aka “The Brown Act”.
The California Senate Housing and Land Use Committee Report for the Common Interest Open
Meeting Act, Civil Code §1363.05 (AB46, 1995) indicated that the law was intended to graft the
traditions of the Brown Act onto condo board operations. This statutory scheme mandates open
governance meetings, with notice, agenda and minutes requirements, and strictly limit closed
executive sessions. See, e.g., Civ. Code, § 1363.05, subd. (b).
Condominium associations such as the Defendant ASSOCIATION, in addition to
possessing the authority to enforce a myriad of rules and regulations governing even the minutia
of every-day living at the project, also receive from and expend on behalf of association
members, such as the Plaintiff, large sums of money. Plaintiff can show that for the last available
audit for the 530-member Defendant ASSOCIATION, the annual operating and reserve budget
was in excess of $2.2 million.
Thus of necessity, both the manner in which, and the substance of, the monetary and other
decisions that are made by the ASSOCIATION have a direct and important impact upon the
quality of Plaintiff's life at the ASSOCIATION and the fiscal value of his separate real estate
interest at the condominium project. (See, e.g., Kaye v. Mount La Jolla Homeowners Assn.
(1988) 205 Cal.App.3d 1476 [homeowner may maintain action against condo association for
diminution of value caused by association's failure to maintain common areas].)
Recognizing these relationships and interests in the context of condominium living and
ownership in general, the California Legislature has enacted in favor of condominium members a
comprehensive scheme for the disclosure of the records of a condominium association's
operations. Without expense to a condo homeowner, and without the necessity for a request
for them by a homeowner, a condo association must annually provide, among other things, copies
of an annual operating budget, a “reserve study” of the useful life, cost, and funding for the
maintenance and/or replacement of the major common area components of the condo project, a
“review”, prepared by a C.P.A. under Generally Accepted Accounting Principles, of its financial
statement, and a summary of the association's insurance coverage. Civil Code §1365. Indeed,
unless certain levels of insurance are maintained by the ASSOCIATION, individual homeowners
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PLAINTIFF’S TRIAL BRIEF
may not be able to avail themselves of immunity protection to actions that arise upon the
common areas of the condominium project. Civil Code § 1365.9.
A homeowner may also demand production by a condo association of copies of the
documents that are described in the immediate foregoing paragraph, even though they are
mandated for annual distribution without any demand for them by homeowners. Civil Code
§1365.2(a)(1)(A).
In addition, upon demand, and upon agreement to pay the reasonable copying costs
therefor, condominium homeowners are also statutorily entitled to a long list of “association
records”, such as balance sheets, income and expense statements, budget comparisons, general
ledgers, executed contracts, reserve account balances, records of payments from reserve accounts,
check registers, the association membership list, and the minutes of the association's board
meetings, among other described documents. Civil Code §1365.2(a)(1)
Upon demand, condominium homeowners are also entitled to “enhanced association
records”, which include invoices, receipts, canceled checks, approved purchase orders, credit
card statements of services rendered, and reimbursement requests to the association. Civ. Code
§1365.2(a)(2)
If a condominium association determines that it will deny a homeowner’s demand for
documents under Civil Code §1365.2, it must provide the homeowner with a written explanation
of the legal basis for the denial, if an explanation is requested by the homeowner.
III.THE DEFENDANT CONDO ASSOCIATIONUNREASONABLY FAILED TO PRODUCEITS RECORDS UPON LAWFUL DEMANDS
FOR THEM BY THE PLAINTIFF HOMEOWNER.The enforcement provisions of the Davis Stirling Act provide as follows concerning
wrongful non-disclosure of condominium association records:
“A member of an association may bring an action to enforce the member's right to
inspect and copy the association records. If a court finds that the association
unreasonably withheld access to the association records, the court shall award the
member reasonable costs and expenses, including reasonable attorney's fees, and
may assess a civil penalty of up to five hundred dollars ($500) for the denial of
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PLAINTIFF’S TRIAL BRIEF
each separate written request. A cause of action under this section may be brought
in small claims court if the amount of the demand does not exceed the jurisdiction
of that court.” (Emphasis added.)
Civil Code §1365.2(f).
This action, filed under the foregoing authority, involves failure to disclose or the
untimely, post-litigation disclosure of, a discrete and small portion of the documents described by
Civil Code Section 1365.2:
A. The Defendant Condo ASSOCIATION Has Unreasonably Failed to Produce toPlaintiff Homeowner a CPA’s AUDIT/REVIEW of the Condo ASSOCIATION’sFinancial Books for Year 2009.
At trial, Plaintiff believes the evidence will show that, beginning in June 2010, Plaintiff
demanded the annual CPA’s audit/review of the defendant condo ASSOCIATION’s financial
transactions for year 2009, and he made numerous, repeated requests for it since. A true and
correct copy of the original email demand for the 2009 audit/review is attached as Exhibit “A ”.
Indeed, an annual audit/review is required by law to be conducted by a CPA and
distributed at ASSOCIATION expense. The audit/review for year 2009 financial records was
due to be distributed to all homeowners by the end of April last year, 2010, but evidence at trial,
or stipulated proof, will establish that it never has been distributed to the homeowners.
The Plaintiff can produce additional evidence to prove that in June of last year, he made a
specific demand for production to him of such an audit/review, but the defendant condo
ASSOCIATION, after first prevaricating over whether or not the ASSOCIATION had engaged a
CPA to conduct the audit/review, has since then, at various times through various agents,
represented that the missing audit/review would soon be provided to the Plaintiff and all other
homeowners. These promises came through the defendant condo ASSOCIATION’s legal
counsel, through at least one sitting board member, and lately, through another former board
member and attorney, who originally represented himself as a sort of neutral settlement broker in
this case, but recently has been revealed to Plaintiff to be acting on behalf of, and providing legal
advice to, the Board of Directors on a myriad of condo issues, including legal assistance in this
matter.
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Page 7_______________________
PLAINTIFF’S TRIAL BRIEF
When, in June of 2010, the audit/review for year 2009 was first demanded by Plaintiff, the
legal counsel for the defendant condo ASSOCIATION emailed to Plaintiff’s counsel that the
audit had not been completed, but would be available the end of July 2010. (See Exhibit “B”
attached hereto.) In response to this representation, Plaintiff made demand that the defendant
condo ASSOCIATION produce proof that such an audit had been contracted for.
The response of the defendant condo ASSOCIATION, through its counsel on July 28,
2010, was to maintain that, “The Audit was to have been completed earlier this week, but has
been delayed. The Association has not yet been invoiced for the audit nor has the payment been
made so such documentation cannot be produced. The Audit will be provided to you as soon as it
is received.” (See Exhibit “C” attached hereto.) The statement that the defendant condo
ASSOCIATION had not been invoiced, nor paid for, the audit on July 28, 2010 was untrue. In
truth of fact, the defendant ASSOCIATION had been invoiced and made a one-half down
payment for the services of a CPA to conduct the 2009 audit/review weeks before the legal
counsel for the defendant condo ASSOCIATION had misrepresented the status of that contract
and its partial payment for it. (See the documents collectively attached hereto as Exhibit “D”.)
It was also fanciful to assert that the audit/review, having been contracted for only a few
weeks earlier, was scheduled to be distributed to Plaintiff and the other homeowners as asserted
by the legal counsel for the defendant condo ASSOCIATION. This was obviously a ploy to
placate the Plaintiff with misrepresentations. The Plaintiff knows full well, from past dealings
with audits of the ASSOCIATION, that such an audit takes well over a month to complete and to
distribute. The defendant condo ASSOCIATION was obviously trying to cover up the fact that it
had done nothing, until 3 months past the date for such a distribution of an audit before it had
even contracted with an auditor to perform it.
The issue of the 2009 audit/review remained dormant until budgeting for the year 2011
began in November 2010, when the Treasurer for the defendant condo ASSOCIATION emailed
the Plaintiff to solicit his assistance in that process. In the course of several email exchanges, the
Treasurer expressed surprise that the Plaintiff had not received the 2009 audit/review, and
promised several times to arrange for its delivery to Plaintiff. (See the emails collectively
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Page 8_______________________
PLAINTIFF’S TRIAL BRIEF
attached hereto as Exhibit “E”.)
In truth of fact, to this date, no such audit/review of the defendant condo
ASSOCIATION’s year 2009 financial transactions has ever been provided. The defendant condo
ASSOCIATION has broken numerous promises to cure this financial reporting default. Indeed,
given this defendant ASSOCIATION’s abysmal record for failing to provide any annual
disclosures through the last two annual reporting cycles, or providing them only partially and only
in an extremely untimely manner, if at all, by the time of trial it may be that this defendant condo
ASSOCIATION’s financial books will have gone unaudited for an unexplained and inexcusable
two full years.
Plaintiff asserts that this proof will provide ample grounds for the court to conclude that
the the defendant condo ASSOCIATION has unreasonably failed to provide the year 2009 CPA’s
audit/review, even though, by the date of trial, it was statutorily-mandated for distribution to all
homeowners over a year ago, with production ten months over-due on Plaintiff’s specific demand
in writing for it, and with several months and several broken promises for its production by
defendant condo ASSOCIATION representatives having transpired in the meantime. The Court
will thus be presented with ample grounds to invoke it’s full authority to command the defendant
condo ASSOCIATION to produce the 2009 audit/review to Plaintiff, and to assess the full
measure of civil penalties provided by law, as against the defendant condo ASSOCIATION and
in favor of Plaintiff.
B. The Defendant Condo ASSOCIATION Has Unreasonably Failed to Produce toPlaintiff Homeowner INSURANCE COVERAGE RECORDS of the ASSOCIATIONfor the Current Year.
On December 31, 2010, Plaintiff made demand of defendant condo ASSOCIATION for
insurance-related information, such as binders, declaration pages and policies, which cover the
ASSOCIATION, and its commonly-owned property, employees, board members and activities.
The Davis-Stirling Act requires condo associations such as the defendant to distribute a summary
of this insurance information on an annual basis, or sooner in the event of a significant change in
that insurance coverage. A true and correct copy of this email demand is attached hereto as
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Page 9_______________________
PLAINTIFF’S TRIAL BRIEF
Exhibit “F”.
On January 15, 2011, Plaintiff emailed a reminder to defendant condo ASSOCIATION of
the statutory deadline for compliance with Plaintiff’s demand for the insurance coverage records,
but Plaintiff still received no response to his demand. A true and correct copy of this email is
attached as Exhibit “G” hereto. On January 27, 2011, Plaintiff initiated this action, and still, to
this date, the defendant condo ASSOCIATION has failed to comply with the demand for
production of the insurance coverage records.
The Plaintiff expects that the trial will show that for about a year no homeowner at the
defendant condo ASSOCIATION has received these usual, annual insurance records, even though
these records are statutorily commanded to be distributed to all homeowners of the
ASSOCIATION on an annual basis. In addition, the Plaintiff will expect to be able to prove that
the Board of Directors of the defendant condo ASSOCIATION voted to cancel its former policies
in effect until the end of 2010 and to replace them with undisclosed policies, with undisclosed
premiums, undisclosed coverage limits, undisclosed exclusions and undisclosed deductibles. The
defendant condo ASSOCIATION has not, as statutorily required, provided to the homeowners of
the defendant condo ASSOCIATION any of that information, as required by Civil Code §1365.
Plaintiff asserts that this proof will provide ample grounds for the court to conclude that
the defendant condo ASSOCIATION’s unreasonably failed to provide insurance-related
documentation even though, by the date of trial, it was statutorily mandated for distribution to all
homeowners at least four months ago, with production almost five months over-due on Plaintiff’s
specific demand in writing for it. Thus, the Court will be presented with ample grounds to invoke
it’s full authority to command the defendant condo ASSOCIATION to produce the demanded
insurance-related documentation to Plaintiff, and to assess the full measure of civil penalties
provided by law, as against the defendant condo ASSOCIATION and in favor of Plaintiff.
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Page 10_______________________
PLAINTIFF’S TRIAL BRIEF
C. Until Plaintiff Filed This Case, the Defendant Condo ASSOCIATIONUnreasonably Failed to Produce to Plaintiff Homeowner Certain SETTLEMENTAGREEMENTS OF LAWSUITS in which the ASSOCIATION Was a NamedDefendant.
On December 15, 2010, the Plaintiff demanded disclosure from defendant condo
ASSOCIATION of settlement agreements for certain lawsuits in which the ASSOCIATION was
named as a defendant. A true and correct copy of this email demand is attached hereto as Exhibit
“H” hereto. The Plaintiff received no timely reply to this demand.
Indeed, by email dated January 15, 2011, the Plaintiff reminded defendant condo
ASSOCIATION of the legal deadline for disclosure of this information, which mandates such
disclosure upon ten business days from the Plaintiff’s written demand. Civil Code §1365.2(j)(1).
A true and correct copy of this email reminder is attached hereto as Exhibit “G ”.
On January 27, 2011, having heard nothing further from the defendant condo
ASSOCIATION, the Plaintiff initiated this action. Over a week following, on February 8, 2011,
the legal counsel for Plaintiff received an email from the legal counsel for the defendant condo
ASSOCIATION which contained the desired documentation of the settlement agreements, none
of which had beforehand been revealed to the homeowners/members of the defendant condo
ASSOCIATION.
Since the defendant condo ASSOCIATION forced Plaintiff to file suit before it replied in
any manner to this demand for its records, and because it was nearly one month past due from
Plaintiff’s demand for them when they were disclosed, Plaintiff asserts that this will provide
ample grounds for the court to conclude that the defendant condo ASSOCIATION’s failed to
provide these demanded litigation settlement agreements in a reasonable and timely manner. The
Court will thus be presented with ample grounds to invoke it’s full authority to assess the full
measure of civil penalties provided by law, as against the defendant condo ASSOCIATION and
in favor of Plaintiff.
Plaintiff asserts that if the Court does not so assess these penalties and costs against
defendant, the Court will be providing the defendant condo ASSOCIATION with incentives to
violate the law in the future, in that the defendant will have little or nothing to lose by ignoring
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PLAINTIFF’S TRIAL BRIEF
similar future demands for its records that it is legally compelled to disclose, and instead will be
in a stronger position to simply wait out and stiff-arm such demands by its homeowners/members
unless and until they decide, as Plaintiff has in this case, to incur the expense, time and efforts to
file suit for such demanded and legally compelled records.
D. Until Plaintiff Filed This Case, the Defendant Condo ASSOCIATIONUnreasonably Failed to Produce to Plaintiff Homeowner Records of FUNDSTRANSFERS INTO AND OUT OF SPECIALLY-DESIGNATED RESERVEACCOUNTS.
On December 15, 2010, made demand of defendant condo ASSOCIATION for its records
of funds transferred into and out of its designated reserve accounts for the previous year. A true
and correct copy of this email demand is attached hereto as Exhibit “H”. At trial, the Plaintiff
will assert, and it may be stipulated, that at the end of November, 2010, the defendant condo
ASSOCIATION failed to meet its statutory duty to provide to all homeowners/members of the
ASSOCIATION with a copy of reserve-related information. It will also be asserted or stipulated
that as of the date of this Trial Brief, the defendant condo ASSOCIATION has still not fulfilled
this obligation of accountability.
At trial the Plaintiff will prove, or there will be a stipulation to the effect, that the
defendant condo ASSOCIATION did not reply in any manner to Plaintiff’s demand for reserve
account information. On January 15, 2011, the Plaintiff emailed a reminder to the defendant
condo ASSOCIATION of the statutory deadline for the compliance with this demand. A true and
correct copy of this email reminder is attached hereto as Exhibit “G”. Still, the defendant condo
ASSOCIATION failed to respond. On January 27, 2011 the Plaintiff initiated this action. On
February 2, 2011, sets of records responsive to this demand by Plaintiff were provided by the
defendant condo ASSOCIATION. However, for many of these provided documents, the proof at
trial will show, there were double duplications onto a single page of photocopy, making many
records obscured and indecipherable by those covering them when photocopied.
Since the defendant condo ASSOCIATION forced Plaintiff to file suit before it replied in
any manner to this demand for its records, and because it provided many indecipherable copies
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when they were disclosed, Plaintiff asserts that this will provide ample grounds for the Court to
conclude that the defendant condo ASSOCIATION failed to provide these demanded reserve
fund records in a reasonable and timely manner. The Court will thus be presented with ample
grounds to invoke it’s full authority to assess the full measure of civil penalties provided by law,
as against the defendant condo ASSOCIATION and in favor of Plaintiff.
Plaintiff asserts that if the Court does not so assess these penalties and costs against
defendant, the Court will be providing the defendant condo ASSOCIATION with incentives to
violate the law in the future, in that the defendant will have little or nothing to lose by ignoring
similar future demands for its records that it is legally compelled to disclose, and instead, if not
so assessed penalties and costs, it will be in a stronger position to simply wait out and stiff-arm
such demands by its homeowners/members unless and until they decide, as Plaintiff has in this
case, to incur the expense, time and efforts to file suit for such demanded and legally compelled
records. The Plaintiff also asserts that this particular issue of penalties and costs should be ruled
in his favor, given the importance of reserve funding for the long-term fiscal and physical health
of the defendant condo ASSOCIATION, and the fact that, by the time of the trial herein, the
ASSOCIATION will have been in six months default of its statutory obligations to make the
annual disclosures related to reserves, which was due to be distributed to all
homeowner/members in November of 2010.
E. Until Plaintiff Filed This Case, the Defendant Condo ASSOCIATIONUnreasonably Failed to Produce to Plaintiff Homeowner Certain MINUTES OFTHE MEETINGS OF THE ASSOCIATION’s BOARD OF DIRECTORS.
On December 15, 2010 the Plaintiff made a written demand for the minutes of the
meetings of the Board of Directors for the defendant condo ASSOCIATION, covering the
meetings for the Fall of 2010. A true and correct copy of this email demand is attached hereto as
Exhibit “H”. The Plaintiff received no reply to this demand from the defendant condo
ASSOCIATION. On January 15, 2010, the Plaintiff emailed a reminder to defendant condo
ASSOCIATION about the statutory deadline for this demand, but still the Plaintiff received no
reply to this demand for the records of the defendant condo ASSOCIATION. A true and correct
copy of this email is attached hereto as Exhibit “G”.
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On January 27, 2011, the Plaintiff initiated this lawsuit. The following week, through the
defendant condo ASSOCIATION’s legal counsel, the defendant asserted that copies of the
minutes of its Board of Directors’ meetings had always been available for all homeowners at the
Clubhouse for the ASSOCIATION. This was not a true statement. No such minutes were ever so
available until after this communication from the legal counsel of the defendant condo
ASSOCIATION, and even so, the Plaintiff has still not received a copy of the October, 2010
meeting minutes, as he reminded the ASSOCIATION through communication from Plaintiff’s
counsel on March 11, 2011. (See Exhibit “J” attached hereto.)
Since the defendant condo ASSOCIATION forced Plaintiff to file suit before it replied in
any manner to this demand for its records, and because it caused its legal counsel to misrepresent
to Plaintiff the availability of such records, Plaintiff asserts that this will provide ample grounds
for the Court to conclude that the defendant condo ASSOCIATION failed to provide these
demanded minutes fo the Board of Directors in a reasonable and timely manner. The Court will
thus be presented with ample grounds to invoke it’s full authority to assess the full measure of
civil penalties provided by law, as against the defendant condo ASSOCIATION and in favor of
Plaintiff.
Plaintiff asserts that if the Court does not so assess these penalties and costs against
defendant, the Court will be providing the defendant condo ASSOCIATION with incentives to
violate the law in the future, in that the defendant will have little or nothing to lose by ignoring
similar future demands for its records that it is legally compelled to disclose, and instead, if not
so assessed penalties and costs, it will be in a stronger position to simply wait out and stiff-arm
such demands by its homeowners/members unless and until they decide, as Plaintiff has in this
case, to incur the expense, time and efforts to file suit for such demanded and legally compelled
records.
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IV.COMPLIANCE WITH A SUBPOENA DUCES TECUM
SERVED UPON THE DEFENDANT CONDO ASSOCIATIONMAY REQUIRE A FURTHER CONTINUANCE OF TRIAL.
On March 10, 2011, the Plaintiff caused to be served upon the General Manager of the
defendant condo ASSOCIATION a subpoena duces tecum. A true and correct copy of the SDT
is attached hereto as Exhibit “I” for the court’s convenience.
In response to this subpoena, the defendant condo ASSOCIATION has claimed in an
application for a continuance of this trial that its response thereto requres production of a “large
volume” of documents. Plaintiff has, through his legal counsel made it clear to defendant that it
need not duplicate and produce under the SDT any documents that it has previously produced to
Plaintiff. The only items that remain to be produced are those that refer to, reflect or concern any
other records of reaction(s) on behalf of defendant to his demands for documents under Civil
Code Section 1365.2, and the records in defendant’s custody that tend to show that it has
attempted to comply with annual legal disclosures to its members of an audit for 2009 financial
transactions (due for distribution in April 2010) and of “reserve study” information (due in
November 2010).
If the documents produced by the defendant in response to the SDT are actually
voluminous, then the Plaintiff will obviously require additional time to prepare for trial in light of
their disclosure, since as of this date, the response to the SDT has not been provided to Plaintiff
by Defendant.
The Plaintiff contends that the materials demanded should not be voluminous or onerous
for the defendant to produce, primarily because the defendant condo ASSOCIATION has not
complied with its legal requirements to distribute the annual disclosures (and thus there should be
little in the way of records regarding the same), and because the reactions to Plaintiff’s demands
for records under Section 1365.2, even those for the 2009 audit back in June of 2010, can
conceivably only comprise no more than a few emails and/or memos. If that is the case, then
obviously the defendant condo ASSOCIATION misrepresented the facts to this court when it
applied for a continuance, and thus unreasonably delayed again its legal obligations to produce its
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records to Plaintiff.
In any event, even if the response to the SDT is not voluminous, the Plaintiff, Defendant
and the Court may benefit from a continuance of this trial, in that the parties may be able to enter
into stipulations of facts, and the Plaintiff may therefore, and otherwise, more efficiently and
fairly present his case to the Court.
V.THE AWARD TO PLAINTIFF
OF CIVIL PENALTIES, ATTORNEY’S FEES ANDCOSTS OF SUIT ARE MANDATORY
BECAUSE OF THE UNREASONABLENESSOF THE DEFENDANT CONDO ASSOCIATION’S
NON-RESPONSES AND ITS UNTIMELY RESPONSESTO PLAINTIFF’S DEMANDS FOR DISCLOSURE
OF DEFENDANT’S FINANCIAL RECORDS.
In addition to the authority of this Court to issue an Order for the disclosure of the
records which to this date the defendant condo ASSOCIATION has utterly failed to produce,
namely the year 2009 audit/review and insurance-related information, the Court is mandated, by
the quoted Civil Code §1365.2 at page 5 above, to Order the Defendant to pay to Plaintiff his
costs of suit and attorney fees. This is in addition to any civil penalty assessed by the Court for
the unreasonableness of the Defendant’s failure to produce those documents. The defendant’s
refusal to supply the other documents demanded by the Plaintiff until after this suit was initiated,
calls for the same result, as argued above in arguments IV(c) through (e) above.
As indicated above, there are five different written demands for records that the
defendant condo ASSOCIATION unreasonably has failed to provide or unreasonably failed to
provide until after Plaintiff initiated this action. The total that Plaintiff asserts the Court may
assess against the defendant condo ASSOCIATION is thus Two Thousand Five Hundred Dollars
($2,500.00).
The Plaintiff’s costs of suit in this action comprise of the filing fee and the service charge
for the Subpoena Duces Tecum.
Although attorneys can not appear at small claims actions, parties are entitled to the
assistance of counsel in preparing for such actions. Estate of Barnicoat (1960) 179 Cal.App.2d
382, 387; City & County of San Francisco v. Small Claims Court (1983) 141 Cal.App.3d 470.
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And, as quoted above, Civil Code §1365.2 makes no distinction for the award of attorney fees as
between attorney fees incurred by a homeowner in a small claims action or an action in
“regular” Superior Court. This is only appropriate, in so far as a Condo Homeowners
Association, were it not obligated to pay reasonable attorney fees to an aggrieved homeowner
such as this Plaintiff, it would simply deploy its superior resources, and hire an attorney or other
agent to delay, deceive and stonewall with alacrity any efforts by that homeowner to gain
rightful access to the association’s records.
A copy of the Statement of Services Rendered by Plaintiff’s counsel related to these
matters is attached hereto as Exhibit “K”. Given the specialized nature of the legal issues
involved, and given further that this Plaintiff is intimately familiar with the fact that the hourly
rate charged by his counsel is less than that charged by the legal counsel for the defendant condo
ASSOCIATION, the legal fee sought of $2,643 is a modest one. This is especially so in light of
the prevarications, obfuscations, delaying tactics and stiff-arming that Plaintiff has experienced
from the Defendant in response to his legal demands for the financial records of the defendant.
See e.g., Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029 [under the former,
and less stringent, HOA disclosure regime, such tactics resulted in court upholding $58,000 in
attorney fees and expenses to homeowner.]
Respectfully Submitted,
Dated: __________________________________________ RICHARD SAKAI
Plaintiff In Propia Persona
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