Lakeside Village Condominium Association Trial Brief by Richard Sakai

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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


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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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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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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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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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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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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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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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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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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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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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.


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.




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.)


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.




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

Lakeside Village Condominium Association Trial Brief by Richard Sakai

Documents

Transcript of Lakeside Village Condominium Association Trial Brief by Richard Sakai