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    Final Status Conference Statement (Part 2)

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    Final Status Conference Statement (Part 2)

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    10 views11 pages

    FSC Supp 9 26

    Uploaded by

    Grant Beuchel
    Final Status Conference Statement (Part 2)

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 11
    Grant Beuchel #113327 420 S. San Pedro Street #311 Los Angeles, California 90013 (661) 428-7365 In Pro Per GRANT BEUCHEL Plaintiff, vs. LITTLE TOKYO LOFTS HOMEOWNERS ASSOCIATION; DOES 1 through 10, inclusive, ) ) ) ) dj ) ) Defendants. » ) ) ) ) ) a ATTORNEYS OF RECORD: a mM SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES Case No. 18STCV09442 PLAINTIFF GRANT BEUCHEL’S SUPPLEMENTAL FSC STATEMENT FSC: SEPTEMBER 26, 2019 TIME: 8:30 A.M. DEPT: 15 TRIAL: OCTOBER 2, 2019 TIME: 9:30AM. DEPT: 15 HONORABLE RICHARD FRUIN, JUDGE ACTION FILED: DECEMBER 24, 2018 TO THIS HONORABLE COURT, AND TO ALL PARTIES AND THEIR Plaintiff Grant Beuchel hereby respectfully submits his “Supplemental Final Status Conference Statement”, filed simultaneously with “Plaintiff"s Statement of Contested Issues” pursuant tothe courts order of September 20, 2019 as follows: PLAINTIFF'S FSC STATEMENT ae (SUPPLEMENTAL) INTRODUCTION Plaintiff Beuchel’s original FSC statement is incorporated herein by this reference including, but not limited to, a statement of the case; a discussion regarding the various causes faction: evidentiary issues; a list of Plaintiff's witnesses; and requests for judicial notice. Thus these discussions will not be duplicated herein. PLAINTIFF'S STAKE IN THE OUTCOME Plaintiff Beuchel isa 10- year owner of unit ¥311 located within the “Litle Tokyo Lofts” (LTL) Association property which is near Little Tokyo but actually located in the heart of skid row. Plaintiff does not expect a ‘perfect world” and did agree o accept certain risks when he bought an ownership position in the LTL Common Interest Development (CID). For example, Plaintiff accepted the risk that this CID does not have earthquake insurance and the chances thit ‘wll obtain such coverage is stim to rine, Another example, Plaintiff discovered that he could not get ttle insurance on his 2 parking spaces during escrow because, according to the title insurance company, they were a common area and thus not subject to coverage. Plaintiff knowingly accepted these risks, as well as others, and bought an ownership interest Plaintiff never agreed to the many risks complained of in his complaint on file herein decrease in the which have resulted in actual pecuniary harm to plaintiff and other owners; quality of life residing within the premises; a decrease in value to the properts increased risk of more personal injury lawsuits; and more fines and fees from the Department of Building & Safety, ”Plaitffis very concemed that without some sort of intervention, judicial or otherwise, itis only a matter of time before somebody becomes seriously injured ot loses their life altogether. Plaintiff has already stated that he will prove atleast three (3) incidents that without Plaintif’s intervention in avoidance, serious bodily injury and or death probably ‘would have occurred. Mt MM i! PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL) =F REQUESTS FOR RELIEF Plaintiff's requests for judicial intervention fall primary into 5 distinct categories, and while Plaintiffs not seeking monetary compensation, he has identified his requests for relief generally herein as follows: |A) Acourt finding that the Association eannot amend the CCR’ by promulgating an stamended” set of Rules & Regulations which are in conflict, and an order declaring those conflicts void. In short, the Association being unable to modify its CC&R’s for tack of a 2/3rds vote of the owners', did nevertheless did thwart Civil Code Section 4205(d)? by incorporating those changes into an “amended” set of Rules & Regulations. B) A court finding that the Association is not enforcing its goveming documents (specific sections as per proof) and for injunctive relief as will be defined and outlined infra; C) A court order enjoining the Association from using unlicensed and ‘uninsured contractors when the law requires such licensure; and further enjoining them from allowing said unlicensed and uninsured vendors on the property to do work thereupon. Since the only vehicle entry onto the property (tothe loading dock and garage area) is through a 24/7 guarded entry point, the Association could take appropriate actions to prevent entry by obvious contractors and trades people; ) Ordering the Association to engage the services of a licensed contractor to inspect the| property to discover illegal additions and modification to the property performed or 1 4600. Vote required for granting exclusive use of common area by member - Unless the governing documents specitya different percentage, the affirmative vote of members owning a 63st 67 percent of the separate interest in the common interest development shall be required ‘before the board may grant exclusive use of any portion of the common area to a member. 2 4205, Conflicts between documents - (a) conflict between governing documents and the law the law shal prevail (b) conflict between articles of incorporation and the declaration (ie,, CCR’s) the aan serra chal prevail; (e) conflict between the bylaws and the articles of incorporation the articles of incorporation shall prevail and (d) conflict in operating roles and the bylaws, articles of incorporation, or anccmraton (Le. CCR's); the bylaws, articles of incorporation or declaration (.e4 CCR’) shall prev PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL) £3 wis os Sewmrida i 2 13 14 15 16 7 18 19 20 a 2 23 4 25 26 27 28 ‘without the required permitting required by the Los Angeles Department of Building & Safety; and when those illegal conditions are found, order the Association to bring them into legal compliance within a reasonable time-frame; E) A court finding that the Association is not maintaining the property in a “clean, attractive & sanitary” condition as is required by CCR 2.1.1 with admonishment and injunctive relief. POINTS & AUTHORITIES RE: Failure to Enforce Governing Documents I Restrictions on the use of Jand should be carried out to e the legitimate desires of the coven: ies The court stated in Hannula vs. Hacienda Homes, 34 Cal 2d. 442 (1949), in pertinent part: “Restrictions on the use of land will not be read into a restrictive covenant by implication, but if the parties have expressed their intentions to limit the use, that intention should be carried out, for the primary objective in construing restrictive covenants, a5 i construing all contracts, should be to effectuate the legitimate desires of the covenanting parties.” aif Associations can initiate and defend legal actions in matters that involve enforcement of the governing documents ‘Through their board of directors, associations can initiate and defend legal actions in matters that involve enforcement of the governing documents*, and if they fail to do so, an > Plaintiff requests that the court take judicial notice of the provisions of the CC&Rs pursuant to Evidence Code §452(h).. PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL) af Rabies hut eseaearg a 10 i 12 13 4 15 16 7 18 19 20 a 23 24 25 26 27 28 individual owner can bring an action to compe! their enforcement and seek injunctive relief pursuant to Civil Code Section 5975* which states: (@) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of nd bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by am ‘owner of a separate interest or by the association, or by both. (b) A governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association. (6) In anaction to enforce the governing documents, the prevailing party ‘shall be awarded reasonable attorney's fees and costs. (Emphasis Added) mm Injunetive relief is an appropriate remedy. ‘As the court stated in Posey vs. Leavitt. 229 Cal App. 3" 1236 (1991), in pertinent part: ‘Under well-accepted principles of condominium law, a homeowner can ‘sue the association for damages and an injunction to compel the ‘association to enforce the provisions of the declaration. : Any owner who believes that the association is not discharging its duty to enforce the restrictions has an individual cause of action against the association......(7 Miller & Starr, Cal. Real Estate, supra, § 20:58, pp. 198-131. 4 Witkin, Summary of Cal. Law (9th ed. 1988) § 495, pp. 672- 673.) [Emphasis Added] See Also, Ekstrom v Marquesa at +h Beach Homeowners Ass'n (2008) 168 CA4th 1111, 1125 (“[W]hen an association refuses to enforce its CC&R’s, a homeowner may seek an injunction compelling it to do so.” [Emphasis Added] «Civil Code §5973. Enforcement of Governing Documents. (Old Section 1354) (Added by Stats. 2012, Ch. 180, See: 2, Effective January 1, 2013. Operative January 1, 2014, by Sec. fh 180) PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL) us SG eS ow i 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 Iv Physical or financial harm are not required to support an enforcement action and injunctive relief No physical damage or financial harm need be shown in a CC&R enforcement action, and proof of substantial damages from violation of a covenant is not an essential foundation to the court's exercise of discretion in granting an injunction. Biaginivs. Hyde, 3 Cal. App 3d 877, 880 (1970) ("tis true that proof of substantial damages from violation of a covenant is not an essential foundation to the court's exercise of discretion in granting an injunction.") [See Also Morgan v. Veach, 59 Cal. App. 2d 682, 690-691 (" ‘Where equitable relief is sought, proof of actual or substantial injury is not essential, the establishment of a violation of a uniform building restriction being all that is necessary to entitle a ’ ‘The propriety of affording equitable relief by injunction rests in the sound discretion of the trial court to be exercised according to the 14 CalJur.2d, complaining owner to relie circumstances and exigencies of each particular case.’ [Citation omitted} Covenants, § 128] v : Safe Harbour Defendants appear to be taking the position that they have done everything within their power to enforce the governing documents all to no avail. Notwithstanding Plaintiff's belief that this is a wholly specious argument since many other CID’s do not appear to have this same problem, and giving defendants every benefit of doubt, Plaintiff suggests alternative relief in the form of a Safe Harbour. Assuming that the Defendants find themselves in a position where they cannot comply with the courts affirmative injunctive relief order, (i.¢., an order requiring them to enforce certain provisions of the governing documents or else face fines & fees payable to the court) Plaintiff shall accept the relief sought in his FSC statement page 10, paragraph 12 which states: PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL) 7. ee a a = 10 12 13 14 15, 16 7 18. 19 20 21 2 23 24 25 26 27 28 Order the parties to “meet & confer” and choose among them 2 third-party neutral property manager to observe the Association and all ofits vendors pessist them in coming back into compliance with the law and general veandards in the industry. If the parties are unable to choose a third-party heutral property manager, each party wil submit to the court up 10 persons or legal entities thatthe party contends would be appropri along Poth the persons background qualifications and expected costs associated With the same. The court then may choose one of the submitted names to verve the Association and at the expense of the Association.” ‘Asa quick aside, the board of directors at the present time is short one (1) member and Plaintiff is willing to agree to have the “neutral property manager” sit on the board as a voting member until such time that his or her services are no longer needed. VI Enforcement and Alternative Relief Plaintiff has performed hours of legal research and has determined tothe best of his ability thatthe standard relief in a failure to enforce an “equitable servitude”S is by way of injunctive relief. ‘The problem is that when a person claims they are unable to do a task, for whatever reason, its difficult to insist that they do it because it creates an enforcement nightmare, at teast when the order requires an affirmative action as opposed to an order 10 refrain from acting.” Also, it isnot fai to ask this court to “babysit” the person so ordered. Plaintiff proposes a solution above in section “V". Plaintiff will agree and stipulate that if the defendant accepts the Safe Harbour option, and follows any reasonable recommendations Ea Ae be iar gett rachind 7 5 CCR’s are not contracts in the typical sense, but rather, ‘equitable servitudes running with the land. ‘There are two categories of restrictions-those found inthe CC&Rs (equitabie servitudes) and those later adopted by an association's board of directors (rules & regulations), Restricts found in the CC&Rs are waar ith very strong presumption of validity which arises from the fact tht each individual unit TRimer purchases his unit knowing of and accepting the restrictions tbe posed," while rules and regulations are subjected toa reasonableness analysis. Villa del Las Palmas vs. Terifai, 33 Cal App 4" 73 2004) PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL) of the neutral third-party property manager, that this shall be sufficient vo comply with the courts affirmative injunctive relief orders. s-asecond means of altemative relief, and honestly this isnot all hat the Plaintiff had envisioned as judicial relief in this action atthe time his complaint was filed, the court could simply make a finding that particular section ofthe governing documents was not being enforced by the Association and admonish them that their stantory duties require them to enforce, This admittedly is an order without any “teeth” whatsoever, Put Plaintiff will do his vest to-work with that order to obtain enforcement which i, after al, the ultimate goal. It is possible that a simple acknowledgement by a judge is enough to convince the ineonvincible and to console the inconsolable. Of course, some kind of enforcement mechanism would be better. [Although all courts do have inherent powers of equity, these Powers should only be exercised when there is no altemative remedy provided by code for the situation®, and here emcees : 6 {his beyond dispute that "Courts have inherent power to adopt any suitable method of practice, both in ordinary actions and special proceedings, ifthe procedure is not specified by statute or by rules adopted by the Judicial Council. (Citation.]" (Citizens Utilities Co, ‘Superior Court (1963) 59-Cal.2d 805, 812- £13, 31.Cal Rpt. 316, 382 P.2d 356.) That inherent power entitles trial courts to exercise reasonable a anicalaver all proceedings connected with pending litigation in ort fo re the orderly cant tration of justice (See Hays v. Superior Court (1940) 16 Cal 260, 264-265, 105 P.2d 975.) ‘Thus, courts are permitted to formulate rules of procedure where jus ‘demands it. (Adamson v. Superior Court (1980) 113 Cal.App.34 50, $09.) The Legislature has also recognized the authority of erericg manage their proceedings and to adopt suitable methods of practice. (See Code Civ. Proc.. § § 128, 187; Rutherford v. Owens-llinois, nc. (1997) 16 Caltth 33 967, 67 Cal.Rptr.24 16, 941 P.2d 1203) Tis also wel established that courts have fundamental Tinherent equity, supervisory, and caeistative powers, as well as inherent [237 Cal Rptr.3d.592] power control litigation before them. (Cottle v. Superior Court (1992) 3 Cal.Appth 1362, 1377, 5 Cal. Rptr,2d 882.) In addition to their (herent equitable power derived from the historic power of equity court all courts have inherent supervisory or administrative powers which enable them to fay 96) their duties, and which exist apart operon statutory authority. (Bauguess v. Paine (1978) 22 Cal.dd 626, 636-637, 150 Cal. Rptr, 461, 586 24.942.) However, even with this authority, courts must ead ‘carefully when creating new procedures Eeappellate courts will not authorize new procedures of dubious ‘constitutional validity. (In re Amber S. (1993) 15 Cal,App-th 1260, 1266, 19 Cal Rp.24 404.) “Nor may we bless procedural innovations PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL) a6- ey Sea 10 a 12 13 14 1S 16 7 18 19 20 21 23 24 25 26 aT 28 there is a remedy provided by code, to wit, injunctive relief. However, the code does not provide for a“safe harbor” alternative to this situation. Since plaintiffs allowing such an alternative relief to exist, then the court under the umbrella of equity, may allow for that alternative remedy to the defendants if they choose to take advantage of it with the understanding that there is no obligation on the part of the defendants to do so. Such an alternative form of relief would essentially negate any argument by defendants that they could not comply with the courts affirmative order for whatever reason they may, in the future, attempt to articulate, ‘Although a probate case, the court in Schwartz v, Lawson, 062708 CA APP2, B191484 found that the courts inherent equitable powers could be used to employ a “ess extreme remedy.” VI Other Issues ‘The discussion of remedies set forth above will resolve most but not all of the issues presented inthis case, Plaintiff will stil call upon the court to make judicial findings regarding Civil Code Sections 4205, 4360, 4600, 4605 & 5975, assuming thatthe parties cannot stipulate ‘amongst themselves to resolve these other issues. Respectfully Submitted, Beuchel In Propia Persona inconsistent with the will ofthe Legislature or that usurp the Legislature’s role by fundamentally altering Criminal procedures." (People v. Lujan (2012)211 CalAppth 1499, 1507, 150 Cal.Rowr.34 727.) PLAINTIFF'S FSC STATEMENT (SUPPLEMENTAL)

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