Laguna Woods Village HOA: Can You Hear Me Now?

LETTERS

Open response to Marty Rubin:

       Laguna Woods Village, CA–Today (09-05-2012)  the revised bylaws and occupancy agreement was defeated by a 67% margin. ARE YOU LISTENING YET??

What you have described as "unnecessary turmoil and dissension" was in fact "unnecessary," because, when our newly-formed group first asked to have a meeting, or even a conversation with some of the Board members regarding the rental restrictions, we were shut out, ignored, and marginalized. Every time the Board refused to hear us PPV grew in supporters. Yet, our petitions with 3,000 signatures was met with laughter and ridicule by a hostile board. It is indeed sad that all this contention could have been avoided with dialogue and respect.

        Your accusation of "Intimidation and fear" is ironically the exact tactic the Board used when they illegally threatening to cut off services if the members did not vote yes. And, Marty, before making accusations of support coming from real estate agents and commercial speculators, get your facts right. We have received NO support from the real estate sector other than being supplied with housing information that is readily available in the paper. ALL support for PPV comes from our 3,000 members making small contributions. The candidates are self-supporting. Don't believe us?... check our records. On the other hand, the United Board has spent our association funds illegally, Civil Code 1363.4, when promoting their agenda in their ads.

       The candidates that we support, Phil Doran, Pat English, Erna Ferris, and Jerren Auble are focused on the all-important issue of open communication, which has been sadly lacking on this Board. Their shared vision is of a Board that's accessible and responsive to the members they represent. Because of the many mistakes and failures of this Board, there are now many issues we must focus on, not just one. With capable people who believe in actually listening to their fellow members, Phil, Pat, Erna and Jerren will bring unity to this commUNITY.

Your neighbor,

Nancy Doran

 

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Peter David Nitschke, a HOA Attorney, Charged with Elder Financial Abuse Arraigned Today

Posted By CotoBlogzz

Rancho Santa Margarita - The Orange County Superior Court Data base indicates that Peter David Nitschke, an Attorney who previously represented HOA Hero Michael Curtis and HOA activist Katie MacDaniel is a fugitive and a warrant was issued for his arrest.  However, according to Orange County District Attorney's (OCDA)  spokesperson Farrah Emami,  Nitschke is not a fugitive and there is no warrant for him. He is currently in custody and was arraigned earlier today in Department CJ-1. He pleaded not guilty and is now scheduled for a pre-trial hearing in Department H-2 on Sept. 14, 2012.

According to the Orange County District Attorney’s  (OCDA) office, Nitschke, 45, Newport Beach, is charged with two felony counts of theft from an elder with sentencing enhancements and allegations for over $100,000 loss, aggravated white collar crime over $500,000, and property loss over $200,000.

It turns out that Nitschke has been playing catch and release with law enforcement, mostly for DWT - driving while texting and failure to produce valid registration and proof of insurance.

Case Number                              OC Pay Number

12HF2546	7334812
09183HD	6152941
CMZ136930	6381592
CY359969	7313600
25655MW	6404396
16984NC	6680466
SA172429PEA	6702156

Besides the financial abuse charges, perhaps more important than the traffic citations, are the California Attorney Bar suspension ruling documenting previous complaint, as documented herein

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CID/HOA Legal Resources

Posted By CotoBlogzz

California Law

• California Law
• Selected California Codes
• California Civil Code

Attorney Client Privilege

• calbar.ca.gov/calbar/pdfs/ethics/2002_Compendium_Index.pdf
•  The Attorney-Client Privilege The Attorney-Client Privilege. Office of General Counsel. The California State University ... In California, the Supreme Court has laid out a number of "basic ..www.calstate.edu/gc/Docs/Attorney-Client_Privilege.doc

Oak Tree removal in California
http://www.legal-news-california.tozerlaw.com/tree_law_california.html
Riverside county
http://www.rctlma.org/planning/content/devproc/guidelines/oak_trees/oak_trees.html

Oak tree care
http://www.californiaoaks.org/ExtAssets/oakcaresec.pdf

HOA Management Templates

• State of Coto Security, a White Paper

American Homeowners Resource Center (AHRC)

Business judgment rule

• California Supreme Court Adopts “Judicial Deference” Rule in Challenges to Board Decisions

George K. Staropoli Website & selected material

• 10 Myths About HOAs.    
• Court cases
• Index of Commentaries
• The Foundations of Homeowners Associations and the New America.

HOA Case History: state actors or mini/quasi government

Cohen v. Kite Hill,142 Cal App 3d 642 (1983) (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.”)

Gerber v. Long Boat Harbour, 757 F Supp. 1339 (M.D. Fla. 1991) (court enforcement of private agreements in condo declarations is a state action; flag; free speech).

Hudgens v. NLRB 424 US 507 (1976) (functions of a municipality, citing Marsh; shopping center)

Marsh V. Alabama, 326 US 501 (1946) (company town and public functions)

Shelly v. Kraemer 334 US 1 (prohibitive state actions by use of judicial enforcement as state was fully aware of the illegal use of the courts; judicial enforcement harms constitutional rights)

Williamson v. Lee Optical, 348 US 483, (1954) (rational basis for scrutiny)

Damon v. Ocean Hills Journalism Club,  85 Cal. App. 4th 468; (2000) (quasi-government; board meetings public forums similar to government body;defamation)

Laguna Publishing Co. v. Golden Rain Found. of Laguna Hills, 131 Cal. App. 3d 182 (1982) (HOA has attributes that “in many ways approximate a municipality . . . close to a characterization as a company town.”)

Surfside 84 v. Mullen Ct. of Special Appeals of Maryland, No. 495 (September 1984) (state action; procedural due process; lack of notice; CAI Reporter).

Brock v. Watergate 502 So. 2d 1380 (Fla. 4 Dist. App. (1987)( public functiuons test; close nexus criteria; HOA lacks character of a company town)

Committee for a Better Twin Rivers v. Twin Rivers, 929 A.2d 1060 (NJ 2007) (HOA not state actor per NJ Scmidt version of Marsh; Not US but NJ Const. case).

Indian Lake v. Director of Revenue, 813 SW 2d 305 (not civic organization)

Midlake v. Cappuccio, 673 A 2d 340, Pa. Super. (1996) (condo is a pvt organization, not muni govt; not a company town)

Riley v. Stoves, 526 P.2d 747, Ariz. App. Div. 2 (1974) (state action; classification; enforce age restrictions;”court to enforce constitutional commands”; restriction was a permissible government interest).

 S.O.C. v. Mirage Casino-Hotel, 43 P 3rd 243 (Nev. 2001) (state action; public functions; delegating functions to private persons; commerical advertising on private property).

Terre Du Lac Ass’n, Inc. v. Terre Du Lac, Inc., 737 S.W.2d 206 (Mo. App. 1987). (quasi govt) (how a homeowner’s association operates as a “quasi-governmental entity,” not authority for the concept that an association’s “quasi-governmental” actions are state actions;).

Westphal v. Lake Lotawana, 95 SW 3d 144 (Mo. App. 2003) (no support for “close nexus” state action).

 

Note:

The above cases in bold are color coded. Red is adverse to constitutional protections; Blue is favorable; black in neutral.

There are 3 case against and 4 cases in favor. Two were not dispositive. The “against” cases were all based on a “public functions” test.

The non-bold cases concern related issues not involving an HOA/condo, such as state action, public functions, or mini/quasi governments.

The above findings are not exhaustive and reflect the analysis of some 153 HOA/condo , state action cases on a federal and state level.

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California Law

California Law :  http://www.leginfo.ca.gov/calaw.html 

California Law Governing Common Interest Developments 

Selected California Codes

• Attorney Client Privilege |  calbar.ca.gov/calbar/pdfs/ethics/2002_Compendium_Index.pdf |  The Attorney-Client Privilege The Attorney-Client Privilege. Office of General Counsel. The California State University ... In California, the Supreme Court has laid out a number of "basic ..www.calstate.edu/gc/Docs/Attorney-Client_Privilege.doc
• Oak Tree removal in California:  http://www.legal-news-california.tozerlaw.com/tree_law_california.html |  Riverside county  http://www.rctlma.org/planning/content/devproc/guidelines/oak_trees/oak_trees.html |  Oak tree care  http://www.californiaoaks.org/ExtAssets/oakcaresec.pdf
• Government code – Public Records Act Request:  http://www.harp.org/og/cpra.htm
• State actors  |  http://pvtgov.wordpress.com/2011/01/09/hoa-case-history-state-actors-or-miniquasi-government/
• Direct elections - Sb 61 and 1560 |  http://www.californiacondoguru.com/SB61.html \  http://www.californiacondoguru.com/SB61.html |  http://info.sen.ca.gov/cgi-bin/pagequery?type=sen_bilinfo&site=sen&title=Bill+Information
   |  http://www.davis-stirling.com/IndexofTopics/CumulativeVoting/tabid/1888/Default.aspx#axzz1zbUo2Bl2 |  http://www.davis-stirling.com/EffectofCumulativeVoting/tabid/1347/Default.aspx#axzz1zbUo2Bl2 
  

California Civil Code

Small claims | http://www.calhomelaw.org/doc.asp?id=459

  Misc Links: School Law |  http://www.nsba.org/SchoolLaw
 

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PRA

6250.  In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.  According to case law, the CZ Master Association is a state actor.

 

6253.1.  (a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

   (1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

   (2) Describe the information technology and physical location in which the records exist.

   (3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

   (b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable toidentify the requested information after making a reasonable effort

to elicit additional clarifying information from the requester that will help identify the record or records.

   (c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.

   (d) This section shall not apply to a request for public records if any of the following applies:

   (1) The public agency makes available the requested records pursuant to Section 6253.

   (2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254.

   (3) The public agency makes available an index of its records.

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Selected California Codes

California Civil Code Davis-Stirling Common Interest Development Act (§1350-1374 C.C.) Restraint on Alienation (prohibition) (§711 C.C) Real Estate signs and displays (§712-713 C.C.) Disclosure requirements on transfer of real property (§1102-1102.5 and §1104-1134) California Corporations Code Non-profit Mutual Benefit Corporations Purposes (§7110-7111 Corp C.) Forming (§7120-7122 Corp C.) Articles, requirements (§7130-7135 Corp C.) Powers (§7140-7142 Corp C.) Bylaws (§7150-7153 Corp C.) Location and Inspection of Articles and Bylaws (§7160 Corp C.) Corporate Duties and Responsibilities under the California Nonprofit Corporation Law (§7210-7215 Corp C.) Selection, Removal, and Resignation of Directors (§7220-7225 Corp C.) Standards of Conduct (§7230-7238 Corp C.) Issuance of Memberships (§7312 Corp C.) Meetings and Voting (§7510-7516 Corp C.) Additional Provisions Relating to Election of Directors (§7520-7527 Corp C.) Voting of Memberships (§7610-7616 Corp C.) Records, Reports, and Rights of Inspection (§8310-8313 Corp C.) Required Records, Reports to Directors and Members (§8320 Corp C.) Rights of Inspection (§8330-8338 Corp C.)   California Code of Civil Procedure Standing of an Owners' Association to Sue (§374 C.C.P.) Statutes of Limitation (§337-339.5 C.C.P.) Small Claims Court (§116.110-, §116.210-, §116.310-, §116.410-, §116.510-, §116.610-, §116.710-, §116.810-, §116.910- C.C.P.) California Health & Safety Code Building Records (§19850-19851 H.S.C.) Asbestos Disclosure (§25915.2-25915.5 H.S.C.) California Vehicle Code Removing (Towing) Vehicles (§22658-22658.2 V.C.)

California Law  California Law consists of 29 codes, covering various subject areas, the State Constitution and Statutes.  To display the Table of Contents for a code, select a code and click on Search - this takes you to the Official California Legislative Information webpage Business and Professions Code Civil Code Code of Civil Procedure Commercial Code Corporations Code Education Code Elections Code Evidence Code Family Code Financial Code Fish and Game Code Food and Agricultural Code Government Code Harbors and Navigation Code Health and Safety Code Insurance Code Labor Code Military and Veterans Code Penal Code Probate Code Public Contract Code Public Resources Code Public Utilities Code Revenue and Taxation Code Streets and Highways Code Unemployment Insurance Code Vehicle Code Water Code Welfare and Institutions Code All

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