APPEALING A SMALL CLAIMS JUDGEMENT

Started by LizA1 • 22 replies • 1609 views

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LizA1 (California)
Posts: 3

Posted:

Hello,

I recently sued our board of directors and the management company for not opening all the ballots at our election. The management company, who appointed themselves as the inspector of elections, refused to open over 10 ballots because they were in the wrong color of envelope. I sued in small claims to have the ballots opened, and the judge ordered the ballots to be opened and counted. This changed the outcome of the election to a board that does not approve of the management company and their lawyers.

They have now appealed the decision. What steps should have been taken to approve the cost of the appeal? They did not have any posted meetings.
Who decides when and at what cost to the HOA is the appeal worth the effort?

Thank you

LarryB13 (Arizona)
Posts: 4,099

Posted:

Liz,

You wrote that you sued your "board of directors and the management company." From that statement it is not clear whether the association or the individual board members were the defendants. If you sued the individual directors instead of the association then they have the right to decide whether to appeal. If the association is the defendant - and the only defendant - then the decision to appeal would rest with the current board. If the management company is named as a defendant then they also have the right to appeal.

SueW6 (Michigan)
Posts: 814

Posted:

WHO is the "they" you speak of?

The management company ran the election. Did THEY make the decision to not open the envelopes?

Was the judgment made against the Management company?

If so, then they (managment company) is appealing the court's decision. The board has nothing to do with it.

I don't understand why the board was brought into it.

LizA1 (California)
Posts: 3

Posted:

Thank you for the response.

I sued the association. I was on the board prior to the election and I opposed the hiring of the management company about 1 year ago. The election voted me off the board, but when I filed the lawsuit, I was placed back on the board until after the hearing. When the judge ordered the remaining ballots to be opened, I was then elected back on the board, along with 2 new board members that also oppose the management company. However, there is a 30 day in small claims court, so I am on the board right now either way.
An appeal has been filed, but as a board member I was never notified of any meeting to discuss the appeal and weigh the costs.
Thank you,
Liz

LizA1 (California)
Posts: 3

Posted:

Thank you for responding.

The "they" is the association.

The management company appointed themselves "Inspector of Elections" which violates
the D/S act, as the management is under contract for services with the association.

The judgment was against the association, I was awarded $500.00

The association is appealing the decision, in an effort to keep me off the board because I oppose the management company. The management company is controlling the board.

Thank you,

LarryB13 (Arizona)
Posts: 4,099

Posted:

As a board member, you should request a special meeting to discuss this matter. I think this qualifies for executive session. Someone needs to contact the attorney handling this matter for the association and find out why he is appealing. It may be that he was hired by the former board members or the management company and is still taking orders from them. If that is the case, it is time to hire a new attorney and file motions with the court to dismiss the appeal.

May I also suggest sending the attorney representing the appellants a letter by certified mail that the current board has not authorized filing the appeal and will not pay any costs, including his fees, arising from the appeal. Lawyers hate working for free so that should stop the appeal.

Do you know why the rejected ballots were in different-colored envelopes?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Yes you're on the board.

But you're also the opposing party in active litigation.

IMO, the former must give way to the latter.

You can attach all kinds of bad attitude to what they're doing - but it's reasonable IMO for them to exclude you from discussions about litigation strategy and planning. Whether you should be excluded from financial discussions would seem IMO less certain.

I don't think they should share any communications from the HOA lawyer with you - for no other reason than you are the opposing litigant in You v Board.

Sikubali jukumu. Read all posts at your own risk.

RichardP13 (California)
Posts: 3,868

Posted:

Liz

How many on your Board? Not sure that the Board members can be seated until the appeal is completed. If the association lost, then at the appeal the Board can then bring in their attorney. If there is a Board of five and you now have a majority, then there is ONLY way way then could be doing what their doing, legally. I don't think they are smart enough to figure that out.

There must be election rules in place in order for the management company to operate as an inspector of elections. They also MUST be appointed by the Board prior to ballots being sent out.

IF you have the majority, call a meeting of the three and stop the appeal and fire all parties involved. If you are on the right side of the thins, it time to make things right.

MarkM31 (Washington)
Posts: 351

Posted:

First of all, in California only monetary judgements are given in small claims court. So the court had no jurisdiction to order the ballots read, and the MC was under no obligation to do so.

The only contestable issue is the $500 award, which will have to be heard at an entirely new trial in Superior court. What was the $500 award for? If it was for your legal costs, it is doubtful that this would be appealable. In any case, it will cost several times $500 for you to defend yourself, and the costs on the HOA will be substantial.

You need to read the judgement again, and tell us what the basis of the award was for, and what else the judge said.

http://www.courts.ca.gov/1016.htm
http://www.courts.ca.gov/selfhelp-smallclaims.htm

RichardP13 (California)
Posts: 3,868

Posted:

The commissioner can tell the association that the ballots need to be counted, along with awarding them money for screwing things up. There is no attorney fees, as there are no attorney fees, at this time, to be award.

MarkM31 (Washington)
Posts: 351

Posted:

Yup, you're right.
http://www.dca.ca.gov/publications/small_claims/basic_info.shtml

You can still ask for legal fees in small claims court, the only limit is the attorney can't appear in court to represent you. But if you hired an attorney to write up a contract, and that contract was part and parcel of the case, then the plaintiff could ask for that payment. Also, suing a small estate (or siblings) to recover probate is another likely example of legal fees being recoverable in small claims court.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By MarkM31 on 05/07/2016 9:11 PM
Yup, you're right.
http://www.dca.ca.gov/publications/small_claims/basic_info.shtml

You can still ask for legal fees in small claims court, the only limit is the attorney can't appear in court to represent you. But if you hired an attorney to write up a contract, and that contract was part and parcel of the case, then the plaintiff could ask for that payment. Also, suing a small estate (or siblings) to recover probate is another likely example of legal fees being recoverable in small claims court.

I have been involved in ten of these small claim cases and none every got attorney fees. It might happen, but I haven't seen it so far.

MarkM31 (Washington)
Posts: 351

Posted:

We have no idea what the basis of the $500 claim is.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By MarkM31 on 05/07/2016 9:38 PM
We have no idea what the basis of the $500 claim is.

It appears the $500.00 is for having the management company as the inspector if there were no election rules in place. That, in itself is a violation of the D-S Act and most likely why the $500.00 judgement.

LarryB13 (Arizona)
Posts: 4,099

Posted:

In my state, the board of directors may appoint an officer to represent the corporation in a lawsuit in a Justice Court, the equivalent of a municipal court and what many might call a "small claims court." Appeals from justice court go to superior court, where a corporation is required to be represented by an attorney.

If there are similar rules in California, the appeal might be dead already. While the former board members may have represented the association in the small claims court they will need an attorney to file the appeal for them. The current board is under no obligation to provide counsel for the former board members and can lawfully let the matter drop by doing nothing. Eventually the time for appeal will expire and the judgment from the small claims court will become the final word in this case.

MarkM31 (Washington)
Posts: 351

Posted:

Quote:

Posted By RichardP13 on 05/07/2016 10:25 PM

Posted By MarkM31 on 05/07/2016 9:38 PM
We have no idea what the basis of the $500 claim is.

But what were the monetary damages? If it was as you suggest, the $500 would be merely a fine, which is something a small claims court likely can't assess.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By MarkM31 on 05/08/2016 8:22 AM

Posted By RichardP13 on 05/07/2016 10:25 PM

Posted By MarkM31 on 05/07/2016 9:38 PM
We have no idea what the basis of the $500 claim is.

But what were the monetary damages? If it was as you suggest, the $500 would be merely a fine, which is something a small claims court likely can't assess.

Here is what the OP wrote:

The management company appointed themselves "Inspector of Elections" which violates
the D/S act, as the management is under contract for services with the association.

The judgment was against the association, I was awarded $500.00

I have to assume, based on what was posted, that the fine was for having an improper inspector. If I ask for the minutes of a HOA ten times and refused, I can
sue for each instance and the suit would be for $5000.00. But, only the OP can clarify that.

IF the HOA had a executive committee, through a Board resolution, only then could they have bypassed the other Board members on the lawsuit. It has to be done in a specific way, and I don't believe they did that.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By LarryB13 on 05/08/2016 12:10 AM
In my state, the board of directors may appoint an officer to represent the corporation in a lawsuit in a Justice Court, the equivalent of a municipal court and what many might call a "small claims court." Appeals from justice court go to superior court, where a corporation is required to be represented by an attorney.

If there are similar rules in California, the appeal might be dead already. While the former board members may have represented the association in the small claims court they will need an attorney to file the appeal for them. The current board is under no obligation to provide counsel for the former board members and can lawfully let the matter drop by doing nothing. Eventually the time for appeal will expire and the judgment from the small claims court will become the final word in this case.

It only stays in Small Claims, it does not go to Superior Court. Municipal Court were abolished years ago.

Lawyers can represent a losing party on appeal, but don't have to.

MarkM31 (Washington)
Posts: 351

Posted:

Found it. And it looks like if they appealed and drug it to a higher court, the OP could get legal fees if they again prevail

Quote:

Civil Code §1363.09. Civil Action for Violations.
[New: Civ. Code §5145, §4605, §4955]

(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by an association of which he or she is a member, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 4 (commencing with Section 1357.100) of Chapter 2, were not followed, a court may void any results of the election.

(b) A member who prevails in a civil action to enforce his or her rights pursuant to this article shall be entitled to reasonable attorney's fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.

(c) A cause of action under Section 1363.03 with respect to access to association resources by a candidate or member advocating a point of view, the receipt of a ballot by a member, or the counting, tabulation, or reporting of, or access to, ballots for inspection and review after tabulation may be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MarkM31 on 05/08/2016 10:44 AM

Civil Code §1363.09. Civil Action for Violations.
[New: Civ. Code §5145, §4605, §4955]

(a) ... Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 4 (commencing with Section 1357.100) of Chapter 2, were not followed, a court may void any results of the election.

Interesting. That level court can void election results.

Sikubali jukumu. Read all posts at your own risk.

MarkM31 (Washington)
Posts: 351

Posted:

And given the wording of the law, if the HOA is ignoring the courts findings, could the OP again bring it to court get the judge to find the HOA in contempt and pick up the OPs bar bill?

RichardP13 (California)
Posts: 3,868

Posted:

Well, what do you know?

KerryL1 (California)
Posts: 14,550

Posted:

Nice citation, Mark!

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