Preview
Electronically Filed by Superior Court of California, County of Orange, 04/04/2023 11:36:57 AM.
30-2023-01316419-CU-BC-CJC - ROA # 2 - DAVID H. YAMASAKI, Clerk of the Court By A. Van Arkel, Deputy Clerk.
1 Jessica E. Lehr, Esq. (SBN 289720)
LEHR LAW, APC
2 1420 Kettner Blvd, Suite 100
San Diego, CA 92101
3 Telephone: (858) 472-5653
Facsimile: (858) 408-7478
4 jessica@lehrlawgroup.com
5
6 Attorney for Plaintiff, DENISE LUPARELLO
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF ORANGE
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11 DENISE LUPARELLO, an individual ) Case No.:
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Plaintiff,
Assigned
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for All Purposes to:
) COMPLAINT FOR DECLARATORY
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) AND INJUNCTIVE RELEIF
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v.
YORBA LINDA VILLAGES
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) s
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CONDOMINIUM ASSOCIATION, and
DOES 1 TO 50., Inclusive,
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Defendants.
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20 Plaintiff Denise Luparello (“Plaintiff”) for her complaint against defendants Yorba Linda
21 Villages Condominium Association, and DOES 1 through 50 (collectively, the “Association”),
22 hereby alleges, as to her own acts and otherwise on information and belief, as follows:
23 NATURE OF THE ACTION
24 1. This case pertains to a homeowner’s dispute against the homeowners’ association
25 managing the common interest development in which she resides, consisting of 330 condominium
26 units located in the city of Yorba Linda, County of Orange, California.
27 2. Presently, Ms. Luparello disputes the imposition of an annual 20% increase to the
28 regular assessment levied against homeowners by the Association, effective February 1, 2023. This
1
COMPLAINT
1 assessment is invalid because it was levied against homeowners without approval by member vote in
2 violation of the CC&Rs, increasing dues by about $93.00 per month.
3 3. While this assessment may appear relatively minor, it is only one of multiple
4 assessments recently and improperly levied upon the homeowners resulting in around an additional
5 $1,300.00 in monthly assessment dues that Plaintiff must pay. These specific assessments were
6 levied to pay for the general repair and maintenance costs to balconies and roofs (the “Project”) that
7 exceeded the initial estimate approved, by vote, by the members.
8 4. Specifically, the homeowners voted to conduct repairs for the Project around 2019
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and passed a special assessment to pay for the estimated costs. Along the way, the actual costs far
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exceeded the estimates obtained by the Association. To pay for the additional costs, the Association
levied a special assessment against owners running from August 1, 2021 through august 1, 2024,
12 P
increasing plaintiff’s dues by $202.97 - 227.95 per month during this period. Then, a one-time
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special assessment was levied against Ms. Luparello with an effective date of February 1, 2023 for
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$258.40.
5.
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Around the same time, the Association also passed a special assessment for
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$21,000,000.00, only to rescind the assessment on or around February 27, 2023. However, the
a
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Association rescinded the $21M assessment only for the purpose of imposing a future, higher
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special assessment after the Association received an updated estimate for a greater scope of work
than previously assessed.
20 6. Importantly, at general session on or around February 27, 2023, the Association
21 raised concern pertaining to the legitimacy of the bills from vendors completing work on the Project.
22 Regardless of these concerns, the Association nonetheless continued denying the member’s proper
23 notice and the opportunity to investigate the status of repairs, work done and/or invoicing/financial
24 before obtaining a duly executed member vote on assessments. Instead, the Association sua sponte
25 passed another interim special assessment for $371,252 which will result in about another $1000.00
26 in increased monthly dues from plaintiff. The $371,252 assessment is at issue in a separate lawsuit,
27 seeking TRO, OSC and declaratory relief.
28
2
COMPLAINT
1 7. The increase in member dues owed by plaintiff now exceeds any amount that plaintiff
2 can reasonably afford on her social security/ disability. Specially, she was deemed medially disabled
3 due to her eyesight resulting in her driver’s license being revoked and her forced retirement from the
4 workforce. As a result, she lives off limited means of income that will not stretch to the limited
5 required by the Association resulting from its abuse of power.
6 8. Consequentially, Ms. Luparello will ultimately lose her home. This is because when
7 she is unable to pay her dues, she will become delinquent within 30 days. After she becomes
8 delinquent, the CC&Rs require the Association to bring members into compliance. Accordingly, the
9
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Association is obliged to levy interest on Ms. Luparello’s dues, attorney’s fees, costs, and other
a
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11 and later foreclose on the same.
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penalties. When she still cannot pay, the law permits the Association to place a lien on her property
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Accordingly, Plaintiff comes before this Court seeking permanent injunctive to stop
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the Association from collecting any further on the regular assessment increase, in whole or in part.
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Specifically, plaintiff seeks a declaration that the current 20% regular assessment is invalid, and
therefore is deemed rescinded and the Plaintiff has no duty or obligation to pay the assessment. In
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the alternate, Ms. Luparello asks this Court to repeal only 10% of the 20% regular assessment
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imposed to make it in compliance with the CC&Rs, and therefore the Plaintiff has no duty or
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obligation to pay more than a 10% regular assessment moving forward. In the alternative, Ms.
Luparello asks this Court to enjoin the Association from increasing the regular assessment by any
20 amount, without membership approval, until the next fiscal year.
21 PARTIES
22 10. Plaintiff Denise Luparello is a 65-year-old disabled individual residing in Orange
23 County, and owner of a separate interest of real property located within the common interest
24 development managed by the Association. At all times relevant, Plaintiff was an Owner of a
25 Condominium within the Condominium Property as defined in the Governing Documents.
26 11. The Association is a California non-profit, mutual benefit corporation doing business
27 in Orange County. At all times relevant, Defendants actions subject to this lawsuit occurred in
28 Orange County.
3
COMPLAINT
1 12. The true names and capacities of defendants sued herein as DOES 1 through 50,
2 inclusive, are unknown to Plaintiff, which therefore sue said defendants by such fictious names.
3 When the true names and capacities of said DOE defendants have been ascertained, Plaintiff will
4 seek leave from the Court to amend this Complaint to insert the true names and capacities of said
5 fictitiously named defendants. Plaintiff alleges that DOES 1 through 50 participated in, and in some
6 capacities are legally responsible for, the acts and omissions giving rise to the causes of action
7 alleged herein.
8 13. At all relevant times, each defendant was acting as an agent, attorney-in-fact, servant,
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independent contractor, subcontractor, partner, joint venture, alter ego, successor in interest, affiliate,
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subsidiary, assignee, representative, partner, joint ventures, co-conspirator, and/ or employee of the
other defendants, and, in doing the acts alleged herein, was acting within the course and scope of
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said agency, engagement, service, assignment, representation, partnership, joint venture, conspiracy
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and/ or employment. Due to the relationship between the Defendants, each defendant has knowledge
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or constructive notice of the acts of each of the other defendants alleged herein.
JURISDICTION AND VENUE
16 14. A
This Court has jurisdiction over this action pursuant to California Code of Civil
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Procedure § 410.10 because the underlying real property giving rise to the homeowners association
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management dispute is located within Orange county, and because a substantial portion of the acts
and omissions giving rise to this matter occurred within this judicial district.
20 15. Venue is proper in this judicial district pursuant to Code of Civ. Procedure § 395
21 because most of the defendants reside within the common interest subdivision located within Orange
22 County, within this Court’s judicial district.
23 STANDING
24 16. Recorded restrictions are enforceable as equitable servitudes. (Civ. Code § 5975).
25 These servitudes may be enforced by any owner of a separate interest. (Civ. Code § 5975). Since
26 Plaintiff owes a separate interest in a condominium within the common interest development, she
27 therefore has standing to bring this action.
28 ///
4
COMPLAINT
1 FACTUAL ALLEGATIONS
2 17. A homeowner’s association is formed to govern and operate land and the
3 improvements within a subdivision for the benefit of the association members (Civ. Code § 4800).
4 An association’s powers (or restriction of powers), obligations, authority, and duties are primarily
5 derived from the covenants and restrictions set forth in a declaration, and the subsidiary documents,
6 articles of incorporation, articles of association, bylaws, or other organizational documents that
7 govern the association (collectively, the “Governing Documents”). Homeowners associations are
8 also empowered or restricted by state statutes, specifically a set of rules in California’s Civil Code
9
l
designated as the Davis-Sterling Common Interest Development Act (the “Act”), Civ. Code §4000 et
a
10
11 standards existing in the governing Documents.
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seq. Many of the statues set forth in the Act require strict adherence subject to no more stringent
12 18. P
On January 22, 1985, the Association’s Declaration of Restrictions was recorded in
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Orange County, California, document number 85-186668 (“CC&Rs”). At all times relevant, the
e
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15 Association.
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CC&Rs were the recorded restrictions in effect concerning the dispute between Plaintiff and the
16 19. A
Pursuant to the CC&Rs, every owner of a condominium within the development is
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deemed a member of the association. (Article 1, sections 5 & 18; Article 2, section 5; Article 3
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20.
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section 1).
On or around 2019, Plaintiff received notice that widespread repairs to the roofs and
20 balconies of all units in the development would be required at some point in the future. This
21 requirement was to comply with the newly enacted Senate Bill No. 326, commonly referred to as
22 “SB-326.”
23 21. SB-326 was enacted on August 30, 2019, to add Sections 5551 and 5986 to the Civil
24 Code. Section 5551 requires the visual inspections of certain exterior elements, including balconies,
25 decks, patios, and elevated walkways by a licensed structural engineer or architect every 9 years,
26 starting in 2025. The purpose of inspection is to ensure that these areas are maintained in a generally
27 safe condition.
28
5
COMPLAINT
1 22. Regardless of having about 6 years before initiating and completing its inspection and
2 reporting requirements pursuant to SB-326, the Association sought to proceed with repairs. On,
3 around or after 2019, the Association sought member vote, and members thereafter approved, a
4 special assessment in the amount of the projected cost of the Project.
5 23. On, around or after 2019, repairs under the Project stated. However, the repairs were
6 halted during 2020 due to the COVID-2019 pandemic. Thereafter, a special assessment was levied
7 for repairs completed by Cornerstone Construction resulting in an additional $227.95 to 202.87 in
8 increased dues from plaintiff between September 1, 2021 through August 1, 2024, without member
9 approval.
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24.
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The Project later resumed around 2022. Despite having significant time to conduct
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due diligence prior to starting repairs, repairs failed to go as planned. To keep up with additional
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overbudget costs of the Project, the Association passed, without member approval, a twenty percent
s
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(20%) annual increase on the regular assessment that became effective February 1, 2023.
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25.
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This 20% annual increase to the regular assessment resulted in an additional $93.00 in
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monthly dues owed by plaintiff. This assessment is current at issue in this Complaint, and is
16 egregious in the aggregate.
a A
17 26.
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Specifically, on February, 1 2023, plaintiff was charged another $258.00 special
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assessment, passed without member approval. Around the same time, the Association passed another
special assessment, without member vote, to the tune of $21,000,000.00. While this special
20 assessment was later rescinded, it was rescinded so that the Association can levy a new, higher
21 special assessment in the near future. In the meantime, on February 27, 2023, the Association passed
22 another special assessment in the amount of $371,252 without notice to the members or after
23 obtaining member vote, irrespective of the Association indicating that there was some concern as to
24 the legitimacy the work performed on the Project.
25 27. Now, Ms. Luparello faces an increase of at least $1,300.00 in increased monthly dues.
26 Further, it appears that assessments will continue to be imposed, without notice or member vote,
27 increasing this monthly amount.
28
6
COMPLAINT
1 28. By taking these actions, the Association deprived Plaintiff of her right to investigate
2 the facts and circumstances bringing about the imposition of the subject assessment, as well as her
3 right to inquire into the financials and the legitimacy of the charges from the Project’s contractors
4 before voting on the subject assessment.
5 29. On March 2, 2023, Plaintiff served the Association with her objection to the improper
6 20% regular assessment. No response was received.
7 30. As a result, Ms. Luparello must pay, at least $1,300 per month to keep up with the
8 additional assessments improperly imposed. She cannot afford the payments. Ms. Luparello was
9
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deemed disabled due to her eyesight around 2019. Her driver’s license was revoked and she was
a
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11
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discharged from the workforce. She has lived paycheck to paycheck on social security/ disability
since. Plaintiff will become delinquent 30 days thereafter, allowing for the levying of the
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assessments due, attorney’s fees, costs, interest and other penalties against Ms. Luparello. She
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cannot afford to pay the assessment increases as they stand, let alone the additional costs and fees
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that will be imposed pursuant to the CC&Rs. As such, she will be subject to the eventual continuing
lien being placed on her property and foreclosure of her property.
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a A FIRST CAUSE OF ACTION
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d i (Declaratory Relief)
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31. Plaintiff alleges and incorporates each of the foregoing allegations of this Complaint
as fully set forth herein.
20 32. An actual controversy exists between Plaintiff and the Association. Plaintiff contends
21 that, under the terms of the Governing Documents and applicable law, the Association lacked
22 authority to pass the annual increase of the regular assessment 20% in excess of the prior fiscal year,
23 without proper notice and without the proper opportunity to vote. The Association, on the other
24 hand, contends that it has no obligation to provide notice to its members of actions it intends to take,
25 nor provide the members an opportunity to vote.
26 33. A judicial declaration that the Association was obligated to seek members approval
27 for any regular assessment in excess of 10 % of the prior fiscal year, that the Association’s 20%
28 increase of the regular assessment was taken outside of its authorization to action, that the
7
COMPLAINT
1 assessment is invalid and therefore that no payment on the regular assessment is enforceable or owed
2 by Ms. Luparello, is necessary and appropriate at this time in order to allow afford Plaintiff relief
3 from actions taken by the Association without authority.
4
PRAYER FOR RELIEF
5
WHEREFORE, Plaintiff prays for judgement as follows:
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1. For a permanent injunction prohibiting Defendant from enforcing the subject
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assessment.
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2. For a declaration that the Association failed to obtain majority vote of a quorum of
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members to pass the subject regular assessment in violation of the applicable rules;
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3.
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For a declaration that the subject assessment is invalid as the action was taken by the
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Association without authorization, and therefore that no payment on the regular assessment is
enforceable or owed by plaintiff; or in the alternate, that the 10% increase in excess of the 10%
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permitted under the CC&Rs is invalid and therefore plaintiff need only pay an amount that equals a
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10% increase; or in the alternate, that the Association is enjoined from increasing the regular
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4.
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assessment by any amount, without membership approval, until the next fiscal year.
For attorney’s fees incurred in connection with this action;
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5.
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For costs of suit and attorney’s fees to the extent recoverable by law;
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6.
M e For such further relief as the Court deems just and proper, or that may be presented at
the time of the hearing on this matter.
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Dated: April 4, 2023 LEHR LAW, APC
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23
By:
24 Jessica E. Lehr
Attorneys for Plaintiff,
25 DENISE LUPARELLO
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COMPLAINT
Preview
Electronically Filed by Superior Court of California, County of Orange, 04/04/2023 11:36:57 AM. 30-2023-01316419-CU-BC-CJC - ROA # 2 - DAVID H. YAMASAKI, Clerk of the Court By A. Van Arkel, Deputy Clerk. 1 Jessica E. Lehr, Esq. (SBN 289720) LEHR LAW, APC 2 1420 Kettner Blvd, Suite 100 San Diego, CA 92101 3 Telephone: (858) 472-5653 Facsimile: (858) 408-7478 4 jessica@lehrlawgroup.com 5 6 Attorney for Plaintiff, DENISE LUPARELLO 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF ORANGE 9 a l 10 11 DENISE LUPARELLO, an individual ) Case No.: o rt 12 Plaintiff, Assigned ) P for All Purposes to: ) COMPLAINT FOR DECLARATORY s ) AND INJUNCTIVE RELEIF 13 v. YORBA LINDA VILLAGES e ) ) ) s 14 15 CONDOMINIUM ASSOCIATION, and DOES 1 TO 50., Inclusive, c c ) ) ) 16 Defendants. a A ) ) 17 d i ) ) ) 18 19 M e ) ) 20 Plaintiff Denise Luparello (“Plaintiff”) for her complaint against defendants Yorba Linda 21 Villages Condominium Association, and DOES 1 through 50 (collectively, the “Association”), 22 hereby alleges, as to her own acts and otherwise on information and belief, as follows: 23 NATURE OF THE ACTION 24 1. This case pertains to a homeowner’s dispute against the homeowners’ association 25 managing the common interest development in which she resides, consisting of 330 condominium 26 units located in the city of Yorba Linda, County of Orange, California. 27 2. Presently, Ms. Luparello disputes the imposition of an annual 20% increase to the 28 regular assessment levied against homeowners by the Association, effective February 1, 2023. This 1 COMPLAINT 1 assessment is invalid because it was levied against homeowners without approval by member vote in 2 violation of the CC&Rs, increasing dues by about $93.00 per month. 3 3. While this assessment may appear relatively minor, it is only one of multiple 4 assessments recently and improperly levied upon the homeowners resulting in around an additional 5 $1,300.00 in monthly assessment dues that Plaintiff must pay. These specific assessments were 6 levied to pay for the general repair and maintenance costs to balconies and roofs (the “Project”) that 7 exceeded the initial estimate approved, by vote, by the members. 8 4. Specifically, the homeowners voted to conduct repairs for the Project around 2019 9 l and passed a special assessment to pay for the estimated costs. Along the way, the actual costs far a 10 11 o rt exceeded the estimates obtained by the Association. To pay for the additional costs, the Association levied a special assessment against owners running from August 1, 2021 through august 1, 2024, 12 P increasing plaintiff’s dues by $202.97 - 227.95 per month during this period. Then, a one-time s 13 s special assessment was levied against Ms. Luparello with an effective date of February 1, 2023 for e 14 15 $258.40. 5. c c Around the same time, the Association also passed a special assessment for 16 A $21,000,000.00, only to rescind the assessment on or around February 27, 2023. However, the a 17 i Association rescinded the $21M assessment only for the purpose of imposing a future, higher d 18 19 M e special assessment after the Association received an updated estimate for a greater scope of work than previously assessed. 20 6. Importantly, at general session on or around February 27, 2023, the Association 21 raised concern pertaining to the legitimacy of the bills from vendors completing work on the Project. 22 Regardless of these concerns, the Association nonetheless continued denying the member’s proper 23 notice and the opportunity to investigate the status of repairs, work done and/or invoicing/financial 24 before obtaining a duly executed member vote on assessments. Instead, the Association sua sponte 25 passed another interim special assessment for $371,252 which will result in about another $1000.00 26 in increased monthly dues from plaintiff. The $371,252 assessment is at issue in a separate lawsuit, 27 seeking TRO, OSC and declaratory relief. 28 2 COMPLAINT 1 7. The increase in member dues owed by plaintiff now exceeds any amount that plaintiff 2 can reasonably afford on her social security/ disability. Specially, she was deemed medially disabled 3 due to her eyesight resulting in her driver’s license being revoked and her forced retirement from the 4 workforce. As a result, she lives off limited means of income that will not stretch to the limited 5 required by the Association resulting from its abuse of power. 6 8. Consequentially, Ms. Luparello will ultimately lose her home. This is because when 7 she is unable to pay her dues, she will become delinquent within 30 days. After she becomes 8 delinquent, the CC&Rs require the Association to bring members into compliance. Accordingly, the 9 l Association is obliged to levy interest on Ms. Luparello’s dues, attorney’s fees, costs, and other a 10 11 and later foreclose on the same. o rt penalties. When she still cannot pay, the law permits the Association to place a lien on her property 12 9. P Accordingly, Plaintiff comes before this Court seeking permanent injunctive to stop s 13 s the Association from collecting any further on the regular assessment increase, in whole or in part. e 14 15 c c Specifically, plaintiff seeks a declaration that the current 20% regular assessment is invalid, and therefore is deemed rescinded and the Plaintiff has no duty or obligation to pay the assessment. In 16 A the alternate, Ms. Luparello asks this Court to repeal only 10% of the 20% regular assessment a 17 i imposed to make it in compliance with the CC&Rs, and therefore the Plaintiff has no duty or d 18 19 M e obligation to pay more than a 10% regular assessment moving forward. In the alternative, Ms. Luparello asks this Court to enjoin the Association from increasing the regular assessment by any 20 amount, without membership approval, until the next fiscal year. 21 PARTIES 22 10. Plaintiff Denise Luparello is a 65-year-old disabled individual residing in Orange 23 County, and owner of a separate interest of real property located within the common interest 24 development managed by the Association. At all times relevant, Plaintiff was an Owner of a 25 Condominium within the Condominium Property as defined in the Governing Documents. 26 11. The Association is a California non-profit, mutual benefit corporation doing business 27 in Orange County. At all times relevant, Defendants actions subject to this lawsuit occurred in 28 Orange County. 3 COMPLAINT 1 12. The true names and capacities of defendants sued herein as DOES 1 through 50, 2 inclusive, are unknown to Plaintiff, which therefore sue said defendants by such fictious names. 3 When the true names and capacities of said DOE defendants have been ascertained, Plaintiff will 4 seek leave from the Court to amend this Complaint to insert the true names and capacities of said 5 fictitiously named defendants. Plaintiff alleges that DOES 1 through 50 participated in, and in some 6 capacities are legally responsible for, the acts and omissions giving rise to the causes of action 7 alleged herein. 8 13. At all relevant times, each defendant was acting as an agent, attorney-in-fact, servant, 9 l independent contractor, subcontractor, partner, joint venture, alter ego, successor in interest, affiliate, a 10 11 o rt subsidiary, assignee, representative, partner, joint ventures, co-conspirator, and/ or employee of the other defendants, and, in doing the acts alleged herein, was acting within the course and scope of 12 P said agency, engagement, service, assignment, representation, partnership, joint venture, conspiracy s 13 s and/ or employment. Due to the relationship between the Defendants, each defendant has knowledge e 14 15 c c or constructive notice of the acts of each of the other defendants alleged herein. JURISDICTION AND VENUE 16 14. A This Court has jurisdiction over this action pursuant to California Code of Civil a 17 i Procedure § 410.10 because the underlying real property giving rise to the homeowners association d 18 19 M e management dispute is located within Orange county, and because a substantial portion of the acts and omissions giving rise to this matter occurred within this judicial district. 20 15. Venue is proper in this judicial district pursuant to Code of Civ. Procedure § 395 21 because most of the defendants reside within the common interest subdivision located within Orange 22 County, within this Court’s judicial district. 23 STANDING 24 16. Recorded restrictions are enforceable as equitable servitudes. (Civ. Code § 5975). 25 These servitudes may be enforced by any owner of a separate interest. (Civ. Code § 5975). Since 26 Plaintiff owes a separate interest in a condominium within the common interest development, she 27 therefore has standing to bring this action. 28 /// 4 COMPLAINT 1 FACTUAL ALLEGATIONS 2 17. A homeowner’s association is formed to govern and operate land and the 3 improvements within a subdivision for the benefit of the association members (Civ. Code § 4800). 4 An association’s powers (or restriction of powers), obligations, authority, and duties are primarily 5 derived from the covenants and restrictions set forth in a declaration, and the subsidiary documents, 6 articles of incorporation, articles of association, bylaws, or other organizational documents that 7 govern the association (collectively, the “Governing Documents”). Homeowners associations are 8 also empowered or restricted by state statutes, specifically a set of rules in California’s Civil Code 9 l designated as the Davis-Sterling Common Interest Development Act (the “Act”), Civ. Code §4000 et a 10 11 standards existing in the governing Documents. o rt seq. Many of the statues set forth in the Act require strict adherence subject to no more stringent 12 18. P On January 22, 1985, the Association’s Declaration of Restrictions was recorded in s 13 s Orange County, California, document number 85-186668 (“CC&Rs”). At all times relevant, the e 14 15 Association. c c CC&Rs were the recorded restrictions in effect concerning the dispute between Plaintiff and the 16 19. A Pursuant to the CC&Rs, every owner of a condominium within the development is a 17 i deemed a member of the association. (Article 1, sections 5 & 18; Article 2, section 5; Article 3 d 18 19 M 20. e section 1). On or around 2019, Plaintiff received notice that widespread repairs to the roofs and 20 balconies of all units in the development would be required at some point in the future. This 21 requirement was to comply with the newly enacted Senate Bill No. 326, commonly referred to as 22 “SB-326.” 23 21. SB-326 was enacted on August 30, 2019, to add Sections 5551 and 5986 to the Civil 24 Code. Section 5551 requires the visual inspections of certain exterior elements, including balconies, 25 decks, patios, and elevated walkways by a licensed structural engineer or architect every 9 years, 26 starting in 2025. The purpose of inspection is to ensure that these areas are maintained in a generally 27 safe condition. 28 5 COMPLAINT 1 22. Regardless of having about 6 years before initiating and completing its inspection and 2 reporting requirements pursuant to SB-326, the Association sought to proceed with repairs. On, 3 around or after 2019, the Association sought member vote, and members thereafter approved, a 4 special assessment in the amount of the projected cost of the Project. 5 23. On, around or after 2019, repairs under the Project stated. However, the repairs were 6 halted during 2020 due to the COVID-2019 pandemic. Thereafter, a special assessment was levied 7 for repairs completed by Cornerstone Construction resulting in an additional $227.95 to 202.87 in 8 increased dues from plaintiff between September 1, 2021 through August 1, 2024, without member 9 approval. a l 10 11 24. rt The Project later resumed around 2022. Despite having significant time to conduct o due diligence prior to starting repairs, repairs failed to go as planned. To keep up with additional 12 P overbudget costs of the Project, the Association passed, without member approval, a twenty percent s 13 s (20%) annual increase on the regular assessment that became effective February 1, 2023. e 14 15 25. c This 20% annual increase to the regular assessment resulted in an additional $93.00 in c monthly dues owed by plaintiff. This assessment is current at issue in this Complaint, and is 16 egregious in the aggregate. a A 17 26. i Specifically, on February, 1 2023, plaintiff was charged another $258.00 special d 18 19 M e assessment, passed without member approval. Around the same time, the Association passed another special assessment, without member vote, to the tune of $21,000,000.00. While this special 20 assessment was later rescinded, it was rescinded so that the Association can levy a new, higher 21 special assessment in the near future. In the meantime, on February 27, 2023, the Association passed 22 another special assessment in the amount of $371,252 without notice to the members or after 23 obtaining member vote, irrespective of the Association indicating that there was some concern as to 24 the legitimacy the work performed on the Project. 25 27. Now, Ms. Luparello faces an increase of at least $1,300.00 in increased monthly dues. 26 Further, it appears that assessments will continue to be imposed, without notice or member vote, 27 increasing this monthly amount. 28 6 COMPLAINT 1 28. By taking these actions, the Association deprived Plaintiff of her right to investigate 2 the facts and circumstances bringing about the imposition of the subject assessment, as well as her 3 right to inquire into the financials and the legitimacy of the charges from the Project’s contractors 4 before voting on the subject assessment. 5 29. On March 2, 2023, Plaintiff served the Association with her objection to the improper 6 20% regular assessment. No response was received. 7 30. As a result, Ms. Luparello must pay, at least $1,300 per month to keep up with the 8 additional assessments improperly imposed. She cannot afford the payments. Ms. Luparello was 9 l deemed disabled due to her eyesight around 2019. Her driver’s license was revoked and she was a 10 11 o rt discharged from the workforce. She has lived paycheck to paycheck on social security/ disability since. Plaintiff will become delinquent 30 days thereafter, allowing for the levying of the 12 P assessments due, attorney’s fees, costs, interest and other penalties against Ms. Luparello. She s 13 s cannot afford to pay the assessment increases as they stand, let alone the additional costs and fees e 14 15 c c that will be imposed pursuant to the CC&Rs. As such, she will be subject to the eventual continuing lien being placed on her property and foreclosure of her property. 16 a A FIRST CAUSE OF ACTION 17 d i (Declaratory Relief) 18 19 M e 31. Plaintiff alleges and incorporates each of the foregoing allegations of this Complaint as fully set forth herein. 20 32. An actual controversy exists between Plaintiff and the Association. Plaintiff contends 21 that, under the terms of the Governing Documents and applicable law, the Association lacked 22 authority to pass the annual increase of the regular assessment 20% in excess of the prior fiscal year, 23 without proper notice and without the proper opportunity to vote. The Association, on the other 24 hand, contends that it has no obligation to provide notice to its members of actions it intends to take, 25 nor provide the members an opportunity to vote. 26 33. A judicial declaration that the Association was obligated to seek members approval 27 for any regular assessment in excess of 10 % of the prior fiscal year, that the Association’s 20% 28 increase of the regular assessment was taken outside of its authorization to action, that the 7 COMPLAINT 1 assessment is invalid and therefore that no payment on the regular assessment is enforceable or owed 2 by Ms. Luparello, is necessary and appropriate at this time in order to allow afford Plaintiff relief 3 from actions taken by the Association without authority. 4 PRAYER FOR RELIEF 5 WHEREFORE, Plaintiff prays for judgement as follows: 6 1. For a permanent injunction prohibiting Defendant from enforcing the subject 7 assessment. 8 2. For a declaration that the Association failed to obtain majority vote of a quorum of 9 a l members to pass the subject regular assessment in violation of the applicable rules; 10 11 3. rt For a declaration that the subject assessment is invalid as the action was taken by the o 12 s P Association without authorization, and therefore that no payment on the regular assessment is enforceable or owed by plaintiff; or in the alternate, that the 10% increase in excess of the 10% 13 e s permitted under the CC&Rs is invalid and therefore plaintiff need only pay an amount that equals a 14 15 c 10% increase; or in the alternate, that the Association is enjoined from increasing the regular c 16 4. a A assessment by any amount, without membership approval, until the next fiscal year. For attorney’s fees incurred in connection with this action; 17 5. d i For costs of suit and attorney’s fees to the extent recoverable by law; 18 19 6. M e For such further relief as the Court deems just and proper, or that may be presented at the time of the hearing on this matter. 20 21 Dated: April 4, 2023 LEHR LAW, APC 22 23 By: 24 Jessica E. Lehr Attorneys for Plaintiff, 25 DENISE LUPARELLO 26 27 28 8 COMPLAINT