[PRpond]
DEAN GETZ, a resident of the Serrano development in El Dorado Hills, filed a lawsuit over organization's tax/fee policy and the lack of enforcement of the organiaztion's CC&Rs. Getz says SERRANO ASSOCIATES failed to act and forced him to sue. He has sued both individually, and on behalf of past and present owners of developed Property.
Highlights:
"Mr. Getz was also a member of the Board of Directors for Defendant Serrano El Dorado Owner's Association from May 2014 to June 2016."
"Mr. Getz is pursuing this lawsuit in his individual capacity as a member of the Association, and in a representative capacity on behalf of all current and past owners of developed Property within the Association who overpaid assessments"
"According to the CC&Rs (Exhibit "1 "), membership in the Association was originally set up with three different classes. For all periods of overpayment in this matter, only'"Class A" existed (CC&Rs, section 4.02). The requirement for membership in the Association is that a member must have ownership of a Parcel ar Lot (CC&Rs, section 4.01)."
"'The voting rights of a membership shall vest as of the date when the [Property] to which membership is appurtenant becomes subject to assessment.' (CC&Rs Article 4, sections 4.01; 4.05 [membership appurtenant]). Therefore, voting rights are contingent on being subject to assessments and being current on paying those assessments."
"A 'Cost Center,' as defined by the CC&Rs, is an area where improvements or maintenance costs are borne disproportionately by designated owners of Property, both developed and undeveloped. Owners of developed and undeveloped Property owe assessments to the Master Association as well as the applicable "Cost Center" in which the Property is located."
"Since the CPI caps the amount that the Association may assess owners of developed Property, the owners of undeveloped Property are required to subsidize the amount necessary to fund the budget for the Master Association and the Cost Centers that exceeds the revenue generated by the maximum allowable assessments of owners of developed Property un all applicable Property in the Cost Center has been developed. Property within the Association still has not been developed despite being annexed into the Association by Serrano Associates, LLC."
Declarations #22 & #23
"22. The Defendant owners of undeveloped Property controlled the Board from 1995 through May 2013 pursuant to the terms of the CC&Rs through employees, officers and direct agents of Serrano Associates, LLC assigned to positions on the Board. After May 2013, the Defendant owners of undeveloped Property exercised covert control over the Board by exercising voting rights to elect Board members with the block voting power they hold by virtue of ownership of undeveloped lots while using the same control to allow them to vote without paying assessments in violation of the CC&Rs and the Association's governing documents. The refusal to pay has resulted in the Board charging the members of the Association who own developed Lots (Plaintiffs), excess assessments in violation of the CC&Rs and the restriction placed on the Association by declaration and subsequent Supplemental Declaration approved by the State of California. The Board has breached its duty owed to all of the other members of the Association by allowing the owners of undeveloped Property to avoid paying assessments at the expense of the Plaintiffs.
23. Since 2004 the Board has refused to collect assessments from the owners of undeveloped Property to meet the Master and Cost Center's budgetary obligations. Instead of collecting the difference between the maximum amount of assessments that can be charged to owners of developed Property from the owners of undeveloped Property to meet the budgetary obligations, the Association assessed the owners of developed Property (Plaintiffs) amounts in excess of that permitted by the governing documents and approved by the State of California."
"the owners of undeveloped Property were to subsidize the budget for Cost Center 7 since the owners of developed lots could not fund the budget without exceeding the annual CPI increase, beginning in 2003. Unbeknownst to the owners of developed Property until Getz discovered it within the last 2 years, the Association assessed owners of developed Property (Plaintiffs) at amounts exceeding the CPI every year beginning in 2003"
"The total subsidy balance through December 2016 is $ l,732,163.14 that must be paid back to the current and past owners of developed Property (Plaintiffs) in Cost Center 7 from 2000 through 2016."
"This same analysis applies to the Original Property and every other Village in Serrano. Owners of developed Property (Plaintiffs) also overpaid in Cost Centers 2, 3, 4, 12, 14 and for the Master Association. The calculations of the amounts due to Plaintiffs in this action is set forth below:... $ TOTAL $15,720,221"
"The Association was under the control of the Serrano Associates, LLC, which was the primary, if not the only, nonpaying property owner set forth above, until May 2013."
"This failure to collect the assessments was first discovered by Mr. Getz when he served on the Association's Board of Directors and had access to the unlawful acts of the Association's Board when it was under the control of Defendant Serrano Associates, LLC. ... the Defendant owners of undeveloped Property used superior voting numbers for votes it was not legally entitled to cast because of its status as delinquent members, to vote Mr. Getz from the Board..."
"In January, 2016, the Defendant Association through its general counsel demanded payment from Defendant Serrano Associates, LLC as the owner or agent for the owner of the undeveloped Property in the Association for payment of unpaid assessments in the amount of $6,839,843.51. Since that demand, Defendant owners of undeveloped Property have refused to pay any of the invoiced assessments. Additionally, the Association's Board has refused to take the necessary action to enforce the CC&Rs and the Association's delinquent assessment policy or suspend voting rights against the owners of undeveloped Property."
"Plaintiffs seek enforcement of the assessment obligations by demanding payment of all delinquent assessment obligations, interest and attorney's fees and costs and the Board's obligation to enforce those assessment obligations and to restrict voting rights to members in good standing.
-- Court Filing --
Plaintiffs:
DEAN GETZ, individually and on behalf of past and present owners of developed Property.
Attorneys for Plaintiffs:
GLEN A. VAN DYKE, SBN: 183796, MEGAN DEHERRERA, SBN: 306646. VAN DYKE LAW GROUP, A Professional Corporation, 11025 Pioneer Trail, Suite 101 A, Truckee, California 96161
DANIELV. KOHLS, SBN: 167987. HANSEN, KOHLS, SOMMER &JACOB, LLP, 1520 Eureka Road, Suite 100, Roseville, California 95661-2849
-- FILED MAR 16 2017, SUPERIOR COURT OF THE STATE OF CALIFORNIA.
Plaintiffs,
SERRANO EL DORADO OWNER'S ASOCIATION, SERRANO ASSOCIATES, LLC.
COMPLAINT
1. INJUNCTIVE RELIEF
2. DECLARATORY RELIEF
3. BREACH OF FIDUCIARY DUTY;
4. BREACH OF COVENANTS, CONDITION AND RESTRICTIONS;
5. ENFORCEMENT OF CC&Rs PURSUANT TO CIVIL CODE 5975
6. B&P CODE SECTION 17200, et seq.
Assigned to: Judge Warren Stracener.
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Plaintiffs allege the following on information and belief:
1. Plaintiff Dean Getz, individually and on behalf of past and present owners of developed property at the Serrano master planned community (hereinafter collectively or individually referred to as "Plaintiffs") are, and at all relevant times to this Complaint were, owners of real property located in a housing development in El Dorado County known as Complaint ~1~ Getz v Serrano. Mr. Getz was also a member of the Board of Directors for Defendant Serrano El Dorado Owner's Association from May 2014 to June 2016.
2. Plaintiffs are informed and believe and thereon allege that, at all times herein mentioned, Defendants Serrano Associates, LLC and DOE 1 through DOE 20Q, inclusive, an each of them, were and jor are the developers for the Serrano planned community and, at all times relevant, were and/or are the owners of the "undeveloped Property" (as that phrase is defined by the CC&R's and described below) in the Serrano planned community.
3. Plaintiffs are informed and believe and thereon allege that, at all times herein mentioned, Defendants Serrano EI Dorado Owner's Association (hereinafter "Association"), and DOE 201 through DOE 400, inclusive, and each of them, were and/or are nonprofit mutual benefit corporations organized and existing under the laws of the State of California andJor the current or former board members, officers, directors, agents, trustees, property managers, attorneys and employees of said Defendants. The purpose of the Association is to act as a management body for the preservation, maintenance, architectural control and improvement of Serrano and to properly enforce the Declaration of Covenants, Conditions and Restrictions ("CC&Rs"), Bylaws, and other governing documents. The Association acts through its Board of Directors (hereinafter "Board"), directors of which are required to be elected by votes of the Association's members in good standing at the time of the election.
4. Plaintiffs are informed and believe and thereon allege that, at all times mentioned, Defendants DOE 401 through DOE 500 are the subsidiaries, joint ventures, affiliates, owners, officers, and alter egos and/or owners of "undeveloped Property" (as that phrase is defined by the CC&Rs and described below) who are and have been, knowingly and willfully, refusing to pay their assessment obligations and have conspired to cover up their obligation to make the payments and hide those non-payments from the other members of the Association. Collectively, Serrano Associates, LLC, along with DOE 401 through DOE 500, will be referred to herein as the "owners of undeveloped Property."
5. The true names and capacities, whether individual, corporate, associate or otherwise, of Defendants DOE 1 through DOE 50Q, inclusive, are unknown to Plaintiffs, who therefore sue such Defendants by such fictitious names, and Plaintiffs will amend this Complaint to show their true names and capacities when the same have been ascertained. Plaintiffs are informed and believe and thereon allege that each of the Defendants designated herein as a DOE is responsible under law in some manner and liable herein by reason of breach of an obligation, contractual or otherwise, breach of a duty, violation of a statute, rule, or agreement, and in other manners, and by such wrongful conduct proximately caused the events and happenings herein referred to and proximately thereby caused the injuries and damages to Plaintiffs as herein alleged.
6. Whenever in this Complaint reference is made to any act or omission of Defendants, or any of them, such allegations shall be deemed to mean that the board members, officers, directors, agents, trustees, joint venturers, partners, shareholders, alter egos, and employees of said Defendants did or authorized or ratified such acts or omissions while actively engaged in the management, direction, control and employ of the affairs of said Defendants, and were acting within the course and scope of their employment, authority, and agency. Whenever in this Complaint reference is made to any act or omission of Defendants, and each of them, such allegation shall be deemed to mean the act or omission of each defendant, acting individually, jointly, in concert, and severally, and in furtherance of their joint activity.
7. Mr. Getz is pursuing this lawsuit in his individual capacity as a member of the Association, and in a representative capacity on behalf of all current and past owners of developed Property within the Association who overpaid assessments pursuant to California Code of Civil Procedure section 382, and pursuant to Civil Code section 5975 as a result of the Association's failure to enforce covenants, restrictions, and obligations, including but not limited to the collection of assessments, against the Developer owners of undeveloped Property. The representative nature of this action is appropriate in light of the necessity of the representation, the convenience and justice necessary to achieve the recovery of money from the Defendants to the owners and prior owners of developed Property within the Association. Plaintiffs are similarly situated with all those they represent and the impracticality of each owner and prior owner of developer Property pursuing their respective individual claims.
8. The Association is located in EI Dorado County. As a result, venue is proper in this Court.
9. This Complaint alleges causes of action based in California law for equitable 'relief and damages that exceed the minimum jurisdictional limit of this Court.
GENERAL ALLEGATIONS
10. The Association and the past and present Board are fiduciaries to the members. As such they owe the members the highest level of care and loyalty provided by California law.
11. The Association has governing documents, including CC&Rs, Bylaws and Policies adopted for the purpose of managing and operating the Association.
12. The Association through its Board is responsible for enforcing the governing documents as a fiduciary and with the duties imposed by the California Corporations Code.
13. According to the CC&Rs (Exhibit "1 "), membership in the Association was originally set up with three different classes. For all periods of overpayment in this matter, only'"Class A" existed (CC&Rs, section 4.02). The requirement for membership in the Association is that a member must have ownership of a Parcel ar Lot (CC&Rs, section 4.01).
14. Once a person is a member of the Association, the member has voting rights, including the right to vote for the Board of Directors. "The voting rights of a membership shall vest as of the date when the [Property] to which membership is appurtenant becomes subject to assessment." (CC&Rs Article 4, sections 4.01; 4.05 [membership appurtenant]). Therefore, voting rights are contingent on being subject to assessments and being current on paying those assessments.
15. "Property" is defined by the CC&Rs as "that portion of the overall Property which at any particular time is subject to this Master Declaration." If the property was not part of the Initial Property at the time of original recordation of the CC&Rs, it can only become Property once annexed (CC&Rs, 14.01 et seq.) Once annexed, the Property is immediately subject to the CC&Rs and assessments (CC&Rs, section 14.11).
16. All owners of Property within the Association are deemed to have covenanted agreed to pay annual common assessments, capital improvement assessments, reimbursement assessments and reconstruction assessments and any interest, costs and attoz-neys' fees associated with the collection thereof (CC&Rs, section 6.01).
17. For the developed Property, assessments are allocated as one "Unit" for a single family lot; as fractions of a Unit for half-plex and multi-unit buildings on a lot; and according to a formula to determine Units for commercial buildings and club facilities (CC&Rs, section 6.05 A). The assessments for the owners of developed Property are determined by the budget of the Association for a given year with a cap set by the initial assessment contained within the original CC&Rs and any document establishing a given Cast Center. That amount can then only be increased annually as permitted by the Consumer Price Index ("CPI").
18. A "Cost Center," as defined by the CC&Rs, is an area where improvements or maintenance costs are borne disproportionately by designated owners of Property, both developed and undeveloped. Owners of developed and undeveloped Property owe assessments to the Master Association as well as the applicable "Cost Center" in which the Property is located. The Master Association and Cost Centers 1 and 2 were created by the original CC&Rs. The other Cost Centers, 3-16, were created thereafter upon annexation of parcels within the boundaries of the Cost Center(s).
19. The Consumer Price Index ("CPI"}, as referenced in section 4 of Exhibit D of the CC&Rs, provides a maximum annual increase for the assessments for the Master Association and any given Cost Center for owners of developed Property.
20. Since the CPI caps the amount that the Association may assess owners of developed Property, the owners of undeveloped Property are required to subsidize the amount necessary to fund the budget for the Master Association and the Cost Centers that exceeds the revenue generated by the maximum allowable assessments of owners of developed Property un all applicable Property in the Cost Center has been developed. Property within the Association still has not been developed despite being annexed into the Association by Serrano Associates, LLC.
21. The Association creates an annual budget for both the Master Association and. each of the Cost Centers. When the assessments from owners of developed Property are insufficient to fund the budgets, the owners of the undeveloped Property must subsidize the difference.
22. The Defendant owners of undeveloped Property controlled the Board from 1995 through May 2013 pursuant to the terms of the CC&Rs through employees, officers and direct agents of Serrano Associates, LLC assigned to positions on the Board. After May 2013, the Defendant owners of undeveloped Property exercised covert control over the Board by exercising voting rights to elect Board members with the block voting power they hold by virtue of ownership of undeveloped lots while using the same control to allow them to vote without paying assessments in violation of the CC&Rs and the Association's governing documents. The refusal to pay has resulted in the Board charging the members of the Association who own developed Lots (Plaintiffs), excess assessments in violation of the CC&Rs and the restriction placed on the Association by declaration and subsequent Supplemental Declaration approved by the State of California. The Board has breached its duty owed to all of the other members of the Association by allowing the owners of undeveloped Property to avoid paying assessments at the expense of the Plaintiffs.
23. Since 2004 the Board has refused to collect assessments from the owners of undeveloped Property to meet the Master and Cost Center's budgetary obligations. Instead of collecting the difference between the maximum amount of assessments that can be charged to owners of developed Property from the owners of undeveloped Property to meet the budgetary obligations, the Association assessed the owners of developed Property (Plaintiffs) amounts in excess of that permitted by the governing documents and approved by the State of California.
24. Village A, Cost Center 7, is an example for explaining the unmet obligation to collect assessments for undeveloped Property throughout the Association.
25. Village A was annexed into the Association through a Declaration of Annexation recorded on June 17, 1993.
26. The obligation to pay assessments to the Master Association and Cost Center 7 began at the date of annexation. Therefore, the owners of Property within Village A were obligated to pay assessments as of July 1998. Defendants should have paid assessments to subsidize the assessments of developed Property to maintain real purchasing power.
27. Pursuant to Exhibit D to the CC&Rs, the owners of undeveloped Property were to subsidize the budget for Cost Center 7 since the owners of developed lots could not fund the budget without exceeding the annual CPI increase, beginning in 2003. Unbeknownst to the owners of developed Property until Getz discovered it within the last 2 years, the Association assessed owners of developed Property (Plaintiffs) at amounts exceeding the CPI every year beginning in 2003, as shown below. The calculation to determine the amount overpaid by the owners of developed Property that should have been subsidized by the owners of undeveloped lots is copied below: [redacted from this story, in attachment link]
28. Defendant Serrano Associates, LLC was provided ballots and voted for each of those 54 undeveloped Lots and Plaintiffs are informed that despite the Board having knowledge of the delinquency in paying assessments by the owners of the undeveloped Property, it issued those owners ballots on March 15, 2017 to vote in this year's election for members of the Board.
29. The total subsidy balance through December 2016 is $ l,732,163.14 that must be paid back to the current and past owners of developed Property (Plaintiffs) in Cost Center 7 from 2000 through 2016.
30. This same analysis applies to the Original Property and every other Village in Serrano. Owners of developed Property (Plaintiffs) also overpaid in Cost Centers 2, 3, 4, 12, 14 and for the Master Association. The calculations of the amounts due to Plaintiffs in this action is set forth below:
Cost Center Amount
2 $1,816,516
3 $1,366,152
4 $11,322
7 $1,732,163
12 $653,604
14 $100,086
Master $3,414,017
Subtotal $9,093,860
Interest $6,626,361
TOTAL $15,720,221
31. The CC&Rs, beginning at section 6.11, set forth the rights and obligations of the Association to collect assessments and related expenses against all members whose payments are delinquent. The Association is empowered to collect amounts due from the owner of the lots) at the time the obligation was due. The Association also has the power to lien and foreclose on the property as provided in the CC&Rs and provisions of the California Civil Code. The Association has also maintained a "Delinquent Assessment Collection Policy" provided to the Association members. The policy effective as of August 2016 is attached as Exhibit "2".
32. The Association was under the control of the Serrano Associates, LLC, which was the primary, if not the only, nonpaying property owner set forth above, until May 2013. Because of that control, the members of the Association were not aware and could not have been reasonably aware of the Association's failure to collect assessments from Serrano Associates, LLC and other Defendant owners of undeveloped Property as required and the corresponding overcharging of assessments to each of the Plaintiffs.
33. This failure to collect the assessments was first discovered by Mr. Getz when he served on the Association's Board of Directors and had access to the unlawful acts of the Association's Board when it was under the control of Defendant Serrano Associates, LLC. As a result of the assertions of non-payment and failure of the Board to collect delinquent dues and demand that Defendant Serrano Associates, LLC reimburse the Plaintiffs made by Getz, the Defendant owners of undeveloped Property used superior voting numbers for votes it was not legally entitled to cast because of its status as delinquent members, to vote Mr. Getz from the Board and continue the willful nonpayment of assessments due while still voting for members of the Baard in violation of the CC&Rs and other governing documents.
34. Getz has demanded that the Association collect the unpaid assessments from the owners of undeveloped Properties, to reimburse owners for overpaid assessments, to enforce its collection policies against the owners of undeveloped Property, and to suspend voting rights based on the failure to pay assessments.
35. In January, 2016, the Defendant Association through its general counsel demanded payment from Defendant Serrano Associates, LLC as the owner or agent for the owner of the undeveloped Property in the Association for payment of unpaid assessments in the amount of $6,839,843.51. Since that demand, Defendant owners of undeveloped Property have refused to pay any of the invoiced assessments. Additionally, the Association's Board has refused to take the necessary action to enforce the CC&Rs and the Association's delinquent assessment policy or suspend voting rights against the owners of undeveloped Property. Defendant Board's failures relating to the assessments due from the Defendant owners of undeveloped Property at the expense of the remaining members of the Association required Plaintiffs to file this lawsuit to compel enforcement of the obligations of the owners of undeveloped Property and to obtain reimbursement of assessments paid by the Plaintiffs from 2003 to present because the Board continues to breach its duty to do so.
36. Getz complied with the Alternative Dispute Requirements of California Civil Code sections 5925 et seq., certification of which is attached hereto as Exhibit "3".
37. Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs 1 through 36 above as though fully set forth herein, and further allege: The wrongful conduct of Defendants as alleged herein, and each of them, unless and until enjoined and restrained by order of this court, will cause great and irreparable injury to Plaintiffs, and other members of Serrano, in that Defendants have engaged in repeated and improper conduct designed to prevent Plaintiffs, and other members of Serrano, from paying the proper assessments and causing Defendants to pay their fair share of assessment pursuant to the governing documents.
39. Specifically, if the Defendants are not enjoined, directors on the Board will be unlawfully elected from votes wrongfully cast by owners of undeveloped Property. Money damages will not be able to compensate for the impact of allowing those votes by the owners of undeveloped Property to influence the identity of the directors.
Relief Against all Defendants
40. Plaintiffs reallege and incorporate each allegation in Paragraphs 1 through 39 of this Complaint, as though fully set forth herein, and further allege:
41. There is an actual and present controversy between P]aintiffs and Defendants, and each of them, regarding Plaintiffs' and Defendant owners of undeveloped property's respective assessment obligations pursuant to the CC&Rs, as well as the Association's duties to enforce those obligations.
42. A declaration regarding Plaintiffs' and Defendant owners of undeveloped property's respective assessment obligations pursuant to the CC&Rs, as well as the Defendant Association's duties to enforce those obligations ~is necessary to prevent Defendants from preventing Plaintiffs, and other members of Serrano, from paying the proper assessments and causing Defendants to pay their fair share of assessment pursuant to the governing documents.
43. Plaintiffs, and each of them, request a declaration from this Court that the Association must enforce the CC&R assessment obligations of the respective parties and seek to remedy past failures to enforce the CC&R assessment obligations of the respective parties.
44. Plaintiffs reallege and incorporate each allegation in Paragraphs 1 through 43 of this Complaint, as though fully set forth herein, and further allege:
45. Defendant Association and its Board members are fiduciaries who are required to exercise their powers according to the authority set forth in the CC&Rs and governing documents and said fiduciary duties are owed to Plaintiffs.
46. At all times relevant, Defendants Serrano Associates, LLC and the other Defendant owners of undeveloped Property dominated the Board and enjoyed methods of control that rendered the remainder of the membership of Serrano weak or nonexistent, thereby assuming a fiduciary duty for holding Serrano Associates, LLC and the other Defendant owners of undeveloped Property to a duty not to use their power in such a way as to harm unnecessari]y a substantial interest of the Plaintiffs.
47. The actions described above were undertaken by Defendants in excess of their authority, were intentional and/or grossly negligent and in breach of their fiduciary duties owed to Plaintiffs and proximately caused damage to Plaintiffs as described herein. Indeed, Defendants breached and continue to breach that heightened duty by failing to bill and collect assessments from the Defendant owners of undeveloped Property, charging excessive assessments to Plaintiffs and the other owners of developed Property, permitting the Defendant owners of undeveloped Property to vote for members of the Board despite their delinquent status, and failing to take legal action to foreclose on the undeveloped Property or collect the delinquent amounts for the Defendant owners of undeveloped Property.
48. Defendants' breach of fiduciary duty damaged Plaintiffs and current and prior owners of developed Property by overpayment of assessments as set forth above.
49. As a direct and proximate result of the events described herein, Plaintiffs and other members of Serrano have suffered consequential damages, the exact amount of which is unknown at this time, but is hereby pied to be in excess of the jurisdictional minimum of this court, the exact amount to be proven at trial.
FOURTH CAUSE OF ACTION
[Breach of the CC&Rs Against all Defendants]
50. Plaintiffs reallege and incorporate each allegation in Paragraphs 1 through 49 of this Complaint, as though fully set forth herein, and further allege:
51. Defendants, and each of them, are all parties bound by and subject to the CC&Rs I and other governing documents of Serrano.
52. Plaintiffs have fully performed all obligations under the CC&Rs and other governing documents which they are required to perform, except as to any performance which has been prevented by Defendants and each of them.
53. Defendants, and each of them, have breached the CC&Rs and other governing documents as hereinabove alleged, and said breaches are continuing and ongoing.
54. As a direct and proximate result of the events hereinabove described, Plaintiffs and other members of Serrano have suffered consequential damages, the exact amount of which is unknown at this time, but is hereby pled to be in excess of the jurisdictional minimum of this court, the exact amount of which will be proven at the time of trial.
FIFTH CAUSE OF ACTION
(Enforcement of Governing Documents Pursuant to CC Section 5975 Against all Defendants)
55. Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs 1 through 54 above as though fully set forth herein, and further allege:
56. Plaintiffs seek enforcement of the assessment obligations by demanding payment of all delinquent assessment obligations, interest and attorney's fees and costs and the Board's obligation to enforce those assessment obligations and to restrict voting rights to members in good standing.
57. Since all Defendants have failed to comply with the CC&Rs, applicable collection policies and other governing documents, Plaintiffs seek to enforce those obligations demanding the assessments be paid by the Defendant owners of undeveloped Property, collection and enforcement action be instituted by the Board against the Defendant owners of undeveloped Property, and to prohibit Defendant owners of undeveloped Property from being issued ballots and voting for Board members when they are delinquent. (Bus. &Prof. Code Section 17200. et sea Against all Defendants)
58. Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs 1 through S7 above as though fully set forth herein, and further allege:
59. Defendants each acted unlawfully in their respective failures to comply with the CC&Rs and governing documents as specifically alleged herein resulting in overpayment of assessments by Plaintiffs and the other current and past owners of developed Property.
60. Defendants Serrano Associates and owners of undeveloped Property acted fraudulently in the acts alleged above in avoiding paying assessment obligations resulting in overpayment of assessment by Plaintiffs and other current and past owners of developed Property.
61. Plaintiffs seek restitution to them for all overpayment of assessments to the
Association and an injunction prohibiting all Defendants' unlawful and fraudulent conduct as alleged in this complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as follows:
FIRST CAUSE OF ACTION
1. For a preliminary and permanent injunction against the Board and owners of undeveloped Property enjoining the continuing violation of the CC&Rs as set forth herein;
2. An order that the Board collect assessments from the Defendant owners of undeveloped Property;
3. An order the Board cease permitting votes by owners of undeveloped lots until they are current on their assessment obligations;
4. An order that Defendants pay Prejudgment interest on the amounts overpaid by Plaintiffs;
SECOND CAUSE OF ACTION
1. For Declarations as to the rights and the responsibilities of the Defendants to '' comply with the CC&Rs as it relates to assessments, enforcing collection policies and voting rights as alleged herein.
2. Attorney's fees and costs of suit pursuant to Civil Code section 5975 and Code of Civil Procedure section 1021.5;
3. For such other and further relief as the Court may deem just and proper.
THIRD, FORTH, AND FIFTH CAUSES OF ACTION
1. Repayment of assessments paid by Plaintiffs and owners of developed Property caused by Defendants' breaches of fiduciary duty;
2. An order that the Board collect assessments from the Defendant owners of undeveloped Property;
3. An order the Board cease permitting votes by owners of undeveloped lots until they are current on their assessment obligations;
4. Prejudgment interest;
5. Attorney's fees and costs of suit pursuant to Civil Code section 5975 and Code of Civil Procedure section 1021.5;
6. Far such other and further relief as the Court may deem just and proper.
SIXTH CAUSE OF ACTION
1. Restitution of overpayment of assessments resulting from Defendants' unlawful and fraudulent acts;
2. Injunction pursuant to B&P Code section 17200, et seq.
3. Prejudgment interest;
4. Attorney's fees and costs of suit pursuant to Civil Code section 5975 and Code of Civil Procedure section 1021.5;
5. For such other and further relief as the Court may deem just and proper.
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Date: March 16, 2017 VAN DYKE LAW GROUP, A Professional Corporation.
DANIEL V. KOHLS, Attorneys for Plaintiffs.
SEE FULL COURT FILLING HERE (145 page PDF): https://drive.google.com/file/d/0B4dqZKa5cz7VYVUyaEZuakN3VmM/view
