RMA faces legal fight on motorcycles
[June 25 update] In a post here, Murietan Tom McCrackin says he will pursue the legal action at least to next week's hearing on a temporary restraining order. See the post
[June 22 update] Murietan Tom McCrackin says he won't be pursuing the legal action against the RMA. See the post
[Full story published June 21] At Tuesday’s meeting, the Rancho Murieta Association board of directors voted to extend the voting period for the community center and pool project by 30 days to Aug. 1, and moved closer to a vote on amending the CC&Rs to allow motorcycles on the North despite a legal challenge. The board announced the dog park will open June 30 at Stonehouse Park.
Vote on motorcycle ban challenged
Directors Scott Adams, left, and Bob Lucas, who are lawyers, spoke for the board's handling of the legal challenge to the vote to amend the CC&Rs.
The board approved a ballot package for an election to amend the CC&Rs to allow motorcycles on the North after General Manager Nick Arther was served with legal documents. George Kammerer, a lawyer representing fellow residents who dispute the right of South residents to vote in the election, served Arther with a lawsuit and an application for a temporary restraining order.
“The court will rule on their ex parte application for a temporary restraining order on Friday,” said Director Bob Lucas, an attorney.
Director Scott Adams, also an attorney, said the board is required to take action on the petition requesting the CC&R election “even under the threat of litigation. ... The board is simply following the rules that the board is required to follow ... Absent a court order that either delays this or prevents it, the board, in my opinion, ... has to move forward. We did receive our 5 percent petition and the rules are set forth...”
The voting issue was raised by neighbor Tom McCrackin at the March board meeting where supporters presented the petition to the board. McCrackin asked the board to correct what he characterized as an oversight in the CC&Rs before taking action on the petition, and pointed out that Article XIII limits voting to amend CC&Rs that apply only to the South or to townhouses. The lack of a similar provision for the North was “inadvertent,” and the board had the authority to correct the oversight, McCrackin said.
At the April meeting, McCrackin made a formal request for internal dispute resolution. "In the month that has passed since I presented this issue, I have heard nothing officially from the board," McCrackin said. Kammerer, a lawyer who said a number of fellow residents had asked him to represent them in the matter, presented the board with a four-page letter.
At Tuesday’s meeting, McCrackin said he met with Directors Bob Lucas and Scott Adams May 22 and they told him “the board does not have the authority to amend Article XIII,” and suggested the North may have been excluded intentionally from its provisions.
“I think what we said ... was even if it’s inequitable, it doesn’t make it illegal,” Lucas said. “We simply don’t have the power to make the amendment to the CC&R that you wished.” It would have to go out for a vote of the membership, he said.
Kammerer and McCrackin requested to the RMA that the matter be submitted to non-binding arbitration and received the RMA’s rejection four days before the June board meeting, McCrackin said.
The board set July 10 as the date of record for the election and the ballots are expected to go out to members before the July board meeting. If approved by 60 percent of the membership, the CC&R amendment would permit motorcycle owners on the North to ride their motorcycles to and from their residences, like their counterparts on the South.
- RMA hears legal threats over North motorcycles, explains effort for community center (April 20, 2012)
Community center and pool project vote
The board approved an extension of the voting period for the community center and pool project since the initial 30-day period expires before the July board meeting and not enough votes have been received to complete the election.
“It’s important that we get as many votes as we possibly can,” said President Jim Moore, asking members to send in their ballots.
A majority of the membership must approve the project and financing plan before it can be built. The financing includes a $1,200 member assessment.
Dog park opens June 30
Everybody and his dog is invited to to attend the opening of the dog park at Stonehouse Park June 30. The festivities begin at 10 a.m. There are separate areas for large and small dogs, and rules for park use.
July 4 passes
Members are urged to get passes to guests in advance of the Fourth of July festivities to avoid back-ups at the Gate and delays entering the community. The passes are available at the RMA Building, and the first five are free. After that, they cost $5. The passes are recommended for all guests, including those on a resident’s guest list.
Giants bus trip
There are still about 20 tickets available for the Sunday, July 29, bus trip to see the
Giants vs Dodgers baseball game. The cost is $58 and the bus leaves the North Gazebo at 10 a.m. The trip is available to RMA members and their guests only. Call RMA at 354-3500 for information and reservations.
The woman who found a car crashed in her front yard last month appeared at Tuesday’s meeting to relate the story and gain support for allowing Security patrol officers to take additional measures to get drunk drivers off the streets. “Our security’s hands have to be untied,” Linda Garcia told the audience of about 24 people. “We need to give our CSD Security back its authority.”
The argument I have heard made for disenfranchising the South vote is a frivolous non-starter. The voting rights explicitly stated in the CC&Rs can not be amended without a vote of the membership because a few people hypothesize, without EVIDENCE, that it was a "mistake."
which brings me to the ominous noises about attorneys' fees.
Civil Code Section 1354....
"(c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and " costs."
This includes the opponents' declaratory relief claim as well as their TRO request.(Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015-1016.)
In my never-humble opinion those suing the Association are confused as to who will be incurring substantial attorneys' fee debt.
I commend the Board for their even-handed and tolerant response to this nonsense.
This was not an enforcement action, and in any event my income is not garnishable. An enforcement action takes place when one neighbor sues another for violating a CC&R. This suit was one for declaratory relief, basically asking the court to decide whether RM North residents were intentionally excluded from Article XIII's protections by the drafters, or whether the drafters had inadvertently failed to recognize the necessity of protecting the North once the South's Special Provisions received protection. If the court had decided that the North is protected under Article XIII, and the Board thereafter sent the matter out for a vote by North and South residents, then an enforcement action could be brought against the Board for violating Article XIII.
As to disfranchising, it is RM North residents whose voting rights are being diluted and, to that extent, denied, by permitting RM South residents to vote to revoke a CC&R that pertains only to the North.
We will never know the answer to the question my Complaint for Declaratory Relief posed. The Board claims, not without merit, that it has no power to correct what most people would agree is an inequitable CC&R. Accepting for the purpose of argument that the Board does lack such power, had the Board simply allowed the matter to go to default (as I requested), a Superior Court judge could have decided whether or not RM North residents were intentionally excluded from the protections of Article XIII. The Board chose instead to hire a firm to oppose my efforts to obtain a judicial declaration regarding what if any rights RM North residents have under Article XIII. I do not know the context of the deliberations the Board had preceding this decision, and it is entirely possible that the Board was acting on sound legal advice.
As sometimes happens in litigation, this matter is being decided not by who is right or wrong, but by who has the greater resources. This, unavoidably, is in the nature of our legal system. I have tried my best to correct what I believe is a CC&R that, as presently applied, denies substantial voting and property rights to RM North residents. I thank the Board members, and especially attorneys Scott Adams and Bob Lucas, for the time and serious attention they have given to this issue.
Had the hearing on the Temporary Restraining Order been held today, we would have a good indication of how the court would most probably rule on the Declaratory Relief action. A judge will only grant a Motion for a Temporary Restraining Order if he or she believes there is a substantial probability that the party requesting the TRO will prevail on the underlying suit, in this case the Complaint for Declaratory Relief. Had I lost the TRO hearing, I would have read the writing on the wall and dismissed the case.
Unfortunately, the hearing on the TRO has been put over for two weeks because the assigned judge is on vacation, and the quick and inexpensive solution I had envisioned (judge's ruling on TRO today) will therefore not take place. During the two weeks the judge is on vacation, the Association would be paying for any charges and fees the Board's attorney might make relating to this case, and those charges could conceivably run into the tens of thousands of dollars. This I find to be unacceptable.
Further, I do not have the financial resources to engage in prolonged litigation against the firm retained to oppose my efforts, and will therefore be dismissing this case.
I would like to thank the RM North residents who contributed to the legal fund to support my efforts. Unfortunately, the fund is insufficient to sustain this litigation, and I am making arrangements to return your checks to you.
Another case of David vs Goliath. Sadly, it's also another case of being on the "right" side of things and still losing out. So much for justice. After all these years, our amazingly imperfect ruling documents still exist and rule the day. Damn the lawyers, and the idiots who drafted our CC&R's, without thought, care or prudence. Right and wrong surely had/has different meanings for some. I thank you for your efforts.
Steven Mobley - North Resident
Over the past weekend I received feedback over my announced intention to dismiss this case. It is obvious to me that the issue posed by my Complaint for Declaratory Relief is of general community interest, and one that should be resolved. While I am only representing myself in this litigation, many residents are supporting me in this effort. Although I am not legally bound to continue with this case, I do recognize a moral obligation to those who have been and are supporting me, and to those who have an interest in resolution of this issue.
The Board has stated it does not know what the drafters of Article XIII intended, whether to exclude RM North residents from its protections or not. It has further stated that it has no authority to change the Article, even if it is inequitable as denying protection to RM North residents, and even if the Board believed the drafters did not intend to exclude RM North. I therefore conclude that the Board cannot resolve this matter. Furthermore, the petition process is simply not an appropriate vehicle to use to resolve the question of the drafters' intent. In our legal system, the question of legislative intent is ultimately one for the courts to decide.
For me to dismiss this case at this juncture would be to circumvent the judicial process, and would make me the final arbiter of the drafters' intent. I do not intend to serve in that role, and will instead continue forward with the legal process, at least as far as next week's hearing on the Ex Parte Application for Temporary Restraining Order. As I have stated in a previous post, a court will not issue a Temporary Restraining Order unless it finds that there is a substantial probability that the person seeking the order will prevail in the underlying lawsuit (here, the Complaint for Declaratory Relief). If the Court denies my Ex Parte Application next week, I will take this as a signal that the court does not believe I will win the Declaratory Relief action, and will dismiss the case. I do not believe I am legally or morally obliged to go further than this.