Improper hearing notification. What recourse does she have?

Short backstory: A hearing is being held for violations which occurred nine months ago. This is not the first hearing for the person in question. Violations have always been noise infractions. A previous hearing resulted in a fine, which has not yet been paid. However, the treasurer has been putting interest on the fine, which is against Davis-Stirling Civil Code. Mediation was tried, but unfortunately, the two board members who most needed to go, refused to. The two board members that did go are no longer residents of the complex, and while the mediation was close to resolving the issue, it could not be continued.

Fast forward to now. The person was not given the proper advance notification or delivery method of the hearing date. The president of the HOA sent an email to the homeowner, citing the reason for the hearing and copied every resident of the complex. Per Davis-Stirliing, hearing notifications must be sent via registered mail or personally delivered at least 10 days in advance of the hearing.

This homeowner only has access to email via work, not privately at home, and the sender did not request a return receipt or even acknowledgment the email was received. All told, there were approximately five non-compliances with Davis Stirling.

I have advised this person to make a packet for each board member, showing each civil code that was not followed and asking for the charges to be dropped. The fact new homeowners were copied on what should have been private correspondence is quite upsetting to her.

I should add that during mediation, the issues were very close to being resolved which would have resulted in the charges being dropped and the homeowner being giving a clean slate. The board agreed to accept the decision made during mediation. The reason I know so much about this is because I was one of the board members involved and have since (happily) moved out of a complex with a very dysfunctional BOD.

As a side note, I should add no one on the board cares for this person, so she is at a disadvantage from the very beginning as anything she does if viewed personally and not objectively by the board.

Does she have any recourse other than what I suggested?

TIA!

Jennifer

Stop trying to play amateur/outhouse lawyer. Is the person guilty or not? If she is and you want to help her so bad, pay her fines.

Jennifer,

Per Civil code, proper procedure were not followed and therefore the hearing cannot move forward until such time as such notice is properly sent. As far as the President sending out whatever information to all the residents in the complex, bad move. If the offended party had any sense they would take this to small claims.

You have several problems.

We were the subject of a hearing that was not properly formed. I am not a lawyer, but I did take our HOA to court and won.

Here are some of the legal issues.

1. All the elements of the hearing need to be fulfilled.
2. If you know that the person being charged only has access to email at work, then she should request all HOA business be sent to her by first class mail or personal delivery, this includes the meeting minutes. Using work email can cause legal problems for anyone should there be a deposition.
3. She should not have attended the hearing, but simply written a protest.
4. She did attend the hearing (from what I've read) and she did attend the mediation. That might legally look like consent (to the misformed hearing) unless she wrote a protest.

If I were in her shoes, and we were, I would start reading up on the Davis-Stirling Act.

I also want to thank you for showing this person sympathy. When we were in her shoes, no one helped us.

My course of action would be much like you suggested. Yet first, I think she then should investigate to see if there where other hearings and if the hearing notifications were also sent to all residents. I wonder how the hearing was then held? Was it an open meeting?

If this person is not well-liked by the board and as you indicated that her actions are viewed with prejudice, then she might have a case for arbitrary and capricious actions against her. Depending upon the situation, she might have a case for discrimination.

1. Write a letter stating simply that this person now understand that hearing was not well-formed and therefore she cannot be held to any such decision.All the legal codes should be cited as well as the CC&R.
2. The reason (legal code) that interest should not be put on the original charge.
3. The letter should be written and sent by first class mail or personal delivery to all the current board members.
4. She should also cite concerns about having all other residents informed of the hearing. Before you do this, I would check and see how the hearing was recorded in the meeting minutes.
5. She shouldn't ask that the charges be dropped, she should state that she now understand her rights. I am not clear on what happened at the hearing, but I suspect she could make a case that the board should have done the kind of work that was done at mediation at the hearing. If that is so, then she should state that she has been willing to work with the board from the beginning, but the board has not been willing as shown by the failed mediation. Then she could possibly state that she feels she is being discriminated against and her actions are not being objectively viewed. She could state this as a reason that she feels mediation ultimately failed.

You don't detail what the noise violation is. However, if she can show that she is being discriminated against in this respect or being held to a standard more restrictive than city/state noise codes, she will have a better defense. Noise concerns should looked into objectively.

She should start responding in a manner that deals with legal codes and statistics. That is the only way she can battle discrimination. If she can find other residents who make noise in a similar manner who are not being giving hearings/fines, then she has a very strong case.

One of the first things and easiest thing to hit someone you don't like is with a noise complaint. From my training at a humane society, I try to look at them like people are told to deal with barking issues.

1. Is the noise regular? Does it happen every day?
2. Is the noise sustained? For how long?
3. Who is the complainant?
4. What are the times and dates of the specific incident(s).
5. Is the noise a result of any code violation(s)?
6. Is the noise actually loud enough for a reasonable person to object (that becomes a decibel issue).

So a car alarm that goes off every morning and runs for so many minutes is considered a nuisance. One that goes off from time to time is not. Likewise a dog barking in a place that allows dogs is not an issue. If the dog barks every day at the same time might be an issue. If the dog barks every day when the mail carrier comes, that's not a big issue. If the dog barks every morning before 7 a.m. that is an issue.

If, however, another dog barks at quiet times (such as between midnight and 7 a.m.) within hearing of the same complainant and the complainant is only choosing to take on one specific person, that's problematic. If the complaint is made about a dog at a time when the dog isn't in residence, that is a real problem.

If, however, the case if that the person has over the legal limit of dogs and the dogs are unlicensed, well, the dog owner is immediately in trouble.

In our case, when we were threatened by our rogue board with dog barking complaints, I asked who the complainant was. The complainant was a director who had pets that weren't allowed by the HOA CC&R and well over the CC&R limit (eight as opposed to two). Also, we had someone whose dog regularly barked at about 2 or 3 a.m. I work early in the morning and can hear it so if that dog isn't a problem, then why is our dog a problem since they didn't bark during that time period? Because I responded with reasonable questions, an actual written complaint was never filed.

BTW, One off barking situations isn't something that violations are given for on a city level. The same is for any noise violation.

I hope this helps.