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Small Claims Vs. Superior Court Civil Matter

Started by LindaK5 • 13 replies • 1298 views

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LindaK5 (California)
Posts: 242
Posted:
Deciding whether to take our case to small claims or civil court (limited jurisdiction civil case).

This is the airbnb thing ..... plus another matter that has a timer on it as well and will most likely be pursuing legal action.

Both homeowners are quite difficult and have a propensity for lying. And, when I say that, I'm being nice.

I'm personally not thrilled with representing the Association in small claims court, so I was thinking about bumping it up as a civil matter. We're asking for less than $1,000 each. My concern is a very volatile homeowner and in our small county, lack of experience in the judge (travelling judge) and maybe even being swayed by the homeowner. Plus, in small claims, we don't have the right to appeal. I think we will definitely win, but you just never know.

Anyone have experience in civil court in California?
TimB4 (Tennessee)
Posts: 21,059
Posted:
Small claims typically has limited authority and mainly deals with financial compensation for damages.

Civil court typically has greater authority including issuing specific injunctions.

You should consult an attorney and ask how much it will likely cost to achieve specific phases of the legal action.
RichardP13 (California)
Posts: 3,868
Posted:
Linda,

First, for the sum of $1000.00, this should be handled in Small Claims, unless you want to make a point, but be prepared to spend plenty of money on something like this if taken to Superior Court.

You are allowed to appeal IF you lose and at that point can bring in an attorney. If you have a property manager, let them plead the case. I have done it 10 times and have never lost.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Linda,

I can speak only for Arizona, but not all courts have jurisdiction over all matters. For example, in AZ to get an injunction to stop the BNB rentals, your only choice would be Superior Court as neither the Justice Court nor its Small Claims Division has jurisdiction to grant injunctions. The small claims court cannot issue injunctions of any kind and the justice court is limited to just a few very specific kinds of injunctions. As an incorporated association you would be required to be represented by an attorney in Superior Court.

LindaK5 (California)
Posts: 242
Posted:
TimB4 - cost isn't an issue as we're asking for reimbursement of all fees, including attorney fees.

RichardP13 - see above. Cost isn't an issue. And yes, we want to make a point here. In small claims, you are NOT allowed to appeal if you lose. Been there, done that. No property manager - we're self-managed.

LarryB13 - excellent advice regarding an injunction. You're right - can't do this in small claims, which is yet another good reason to make this a civil matter. Yes, we have an attorney.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Question? Could this matter be more criminal? Meaning is having an airnb legal in your location? I'd look into possible criminal violations versus a lawsuit. There may be some criminal aspects to this issue such as violation of certain laws. Plus may consider finding out if their mortgage company approves of such use.

Your HOA should also have a caveat that homes can't be used as businesses. Which may give you another angle than going to court. Plus there is always the IRS... I am sure that income has to be reported.

That's just some ideas than going to court which would consult an attorney. HOA's typically need an attorney to represent them in court other than small claims. A consideration when it comes to expense and approval.
Former HOA President
LindaK5 (California)
Posts: 242
Posted:
MelissaP1 - this wouldn't be considered a criminal matter.

The Association governing docs state no transient occupancy - leases must be 30 days or more. This person was doing overnighters, weekends, several days, etc. We're covered. Plus, I've spoken to our insurance company and they don't go for this either. Association also doesn't commercial business activity, which is what this is. We've got this homeowner on two Declaration violations. Also, our city requires income from Airbnb's to be reported, but I really doubt anyone does that. Airbnb's are rampant in our county. I imagine the cities can't even keep up with keeping track of them. This homeowner also doesn't have any additional homeowner's insurance other than the Association insurance.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Why is the Association paying their insurance? Why can't it be reported? Just because you believe there is a back log or nothing will happen? That is the proper avenue to pursue to report to the city is it not? Instead being dead set on the lawsuit, use your resources for reporting.
Former HOA President
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By MelissaP1 on 01/24/2017 3:11 PM
Why is the Association paying their insurance?

Might be a condominium.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By LindaK5 on 01/24/2017 3:08 PM
This homeowner also doesn't have any additional homeowner's insurance other than the Association insurance.


This brings up a whole new concern. The owner is inviting his paying guests to come onto your property while providing no insurance coverage to those persons.

JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By LindaK5 on 01/24/2017 11:02 AM
TimB4 - cost isn't an issue as we're asking for reimbursement of all fees, including attorney fees.

LOL ... you can ASK all you want, but that does not mean you will WIN and be AWARDED.

If you are talking about $1,000 ... that is a no brainer. If you loose that amount not a big deal, but if your loose in higher court it might cost you more than the amount you are suing to receive with additional fees and attorney costs.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By LindaK5 on 01/24/2017 11:02 AM

TimB4 - cost isn't an issue as we're asking for reimbursement of all fees, including attorney fees.

This is standard in most legal actions.
However, if awarded, the Court will only award reasonable (as determined by them) attorney fees.

Based on conversation with our attorneys, this is approx 60 to 70 percent of the actual costs.
The Association would still have to pay the difference.
LarryB13 (Arizona)
Posts: 4,099
Posted:
When a court issues a judgment, the prevailing party is always awarded his costs incurred for filing and serving the action. Some other costs, such as those incurred for taking a deposition, securing witnesses, or jury costs may also be awarded. Attorney fees are not so automatic. Usually, the court will not award them unless there is a contract stipulating that fees may be recovered and even then the court may decline to award attorney fees unless they were specifically requested.

Even if attorney fees are eligible to be recovered, the court has a great deal of discretion in how much to award. I recall one AZ case in which the appellate court set forth at least seven things that the trial court must consider, such as whether the attorneys went overboard in preparing their case, running up the billable hours beyond what was needed. Bottom line is that recovery of attorney fees is a craps shoot.

LindaK5 (California)
Posts: 242
Posted:
We have Association insurance which covers the building exterior, roads, common areas, etc. I didn't say our insurance covered the interior of this person's home. Not sure where you got that idea. As for reporting this person for not paying bed tax - not our job to do that. That would be the city's job. We are not losing anything because this person doesn't pay a bed tax. On the other hand, we could be losing alot if this person continued to do the transient occupancy business (Association liability).

And, not to bring this topic up AGAIN, but that is why we have been tracking the transient occupancy/commercial business use and have our attorney involved - this person was bringing paying guests onto the property. That is a liability to the Association. We know that. We're doing something about it.

TimB4 - I have no doubt in my mind that we will WIN and be AWARDED. That sounds pretty presumptuous, doesn't it? But, I'm pretty familiar with the legal system in our county and the rules, too. One thing on our side is the homeowner we're dealing with. This person will absolutely bury themselves in court. We have governing documents to stand behind, documented evidence, an Association attorney, etc. And, losing $1,000 is a BIG deal. Losing any money is a BIG deal. We are not an Association with a big bank account. Years ago, the Board was spending money left and right on having work done by incompetent contractors, paying the President's husband to do very poor work which we're still trying to correct, writing erroneous checks to charges that were false, and a whole host of other financial errors and mishaps.

As to the attorney fees - they are quite reasonable and I don't foresee anything getting out of the control there. It will be me and the attorney only. Our governing documents stipulate recovering attorney fees, so this isn't an issue. I understand some think it might be a crap shoot - my experience in our county courts, I don't believe this at all.

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