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February 5, 2010
There's No Such Thing As A "Slam Dunk"! A True Story
This is a lesson for both HOAs and Owners who want to consider litigation. It is an experience I had when doing litigation years ago.
The Association contacted me for assistance. An owner (we will call them Owner A) was complaining about a neighbor's (we will call them Owner B) use of a basketball standard in their back yard. This was a “zero lot line” community meaning the lot line for one unit was an exterior wall of a neighboring unit. The owner that complained was a day sleeper who worked nights. The “neighbor” was the husband in a young family with two children. He also was a “wannabe” semi pro basketball player and loved the BB standard. He brought his daughters out every day to play some B’ball. The “backboard” for loose balls was Owner A’s bedroom wall.
You can imagine the situation. Owner A was not getting sleep. Owner B was determined he had a right to play BB in his back yard. The Association’s CC&Rs banned basketball standards in the development. The Owners complained to and about each other and to the Association Board of directors. Tempers flared. Owner A claimed Owner B played B’ball more than ever, all day long and at times simply bounced the ball against the wall for hours on end. Owner B claimed Owner A tried to run him and his kids down when they were walking to the mailbox. Yes, it was bad.
Entrance: me. Through my assistance, the board tried letters, fining, threats, and everything else. We even had a “mediation” of sorts and tried to get Owner B to move the BBall standard from one side of their home to the other. That side of the yard backed up to the back yard of the realtor who sold the home to Owner B (and who was singlehandedly responsible for the entire situation). If balls went astray they would pound that fence or go into that yard. This would be poetic justice I felt. The details would make this blog too long but are covered in my condolawguru.com blog called “Is Eight Years Too Long?” Owner B would not budge. He was adamant about his rights.
The Association sued. They were in the right but that did not mean it would be a painless process. The courts were clogged enough already, and a law had just been passed that required courts to get to trial within one year of filing, so many cases were pushed up. Getting a courtroom was a nightmare. After going back to court 4 times, meaning the board members had to take time off of work 4 times (and I had to rearrange my schedule 4 times), we got into court! Yay! (One would think.)
The other attorney and I went into the judge’s chambers to talk about pretrial motions. The judge was being very resistant to my client’s case. It seemed he wanted the HOA to back down. I cited a now famous case which had just come down from the California Supreme Court upholding the integrity of HOA CC&Rs which should have been taken in my client’s favor (Nahrstedt v. Lakeside Village Condominium Association). The judge’s response was that the 30 days to appeal had not passed and he would not consider the case.
Okay, that first day of trial was rough. It really seemed the judge was being very difficult. That evening, the manager of the HOA called me and said he remembered where he had seen the judge. He lived in one of the manager’s HOAs and had been called to a hearing on a basketball standard matter. His problem was he refused to paint the basketball standard the same color as the garage, which was the association rule. The association had threatened to fine him and he had threatened to sue the association.
Great! The next day of trial I and the other attorney went into chambers and I asked the judge to recuse himself because of this situation. He said that he could be fair, but did recuse because the same management company represented his association as this one in court.
So we were back to square one. We got another judge, went back to court, and this time, the trial went fast, was over by about 2, and the judge did not even want closing arguments. He ruled right away, in favor of the association. Owner B stomped out of court and fired his attorney on the way (a little late I would say).
And the judge ultimately granted about 90% of the association’s attorney’s fees be reimbursed, discounting all of the fees charged for coming to trial on days when there was no trial. He said that was not the client’s fault. (It was not my client’s fault either, but so be it.)
It took about 3 times of hitting Owner B’s bank account on payday to recover the fees. Of course, he did not pay them willingly. And the board members of course did not recover any time lost from work or anything for the incredible inconvenience to them. It was an excruciating process for what should have been a simple “slam dunk” case.
The moral of the story is: THERE IS NO SLAM DUNK!!! Don’t think court will be painless, even when you “win”
Sometimes there is strange “justice” though. I heard several months later that the first judge went back to his HOA and agreed to paint his house the same color as his basketball standard! I hope it’s true. If so, then one more judge got “educated”.
Posted by Beth Grimm at February 5, 2010 8:07 PM