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ROBERTS + ELLIOTT
Law Corporation
JAMES ROBERTS, SBN 98804
SHARMI SHAH, SBN 233110
150 Almaden Boulevard
Suite 950
San Jose, CA 95113
Telephone: (408) 275-9800
Fax: (408) 287-3782
Email: jroberts@robertselliott.com
sshah@robertselliott.com
Attorneys for Petitioner
Julie T. Nguyen
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
GENERAL JURISDICTION
JULIE T. NGUYEN, No. 17CV317898
REPLY IN SUPPORT OF PETITION FOR
WRIT OF MANDATE TO COMPEL
INSPECTION OF CORPORATION
RECORDS AND INFORMATION ETC
Petitioner,
vs.
LITTLE ORCHARD BUSINESS PARK
OWNERS ASSOCIATION, Date: August 9, 2018
Time: 9:00 A.M.
Respondent. Dept: 6
Judge: Hon. Theodore Zayner
IT IS UNCONTESTED THAT CERTAIN DOCUMENTS WERE NOT PRODUCED
Petitioner Nguyen has been requesting documents from the Association, and
stonewalled, for almost three years - since on or about September 10, 2015.
Respondent Little Orchard Business Park Owners Association (hereinafter “the
Association”) does not contest the fact that the following records were not provided for
inspection:
A. All annual meeting minutes prior to 2011;
B. All annual meeting reports prior to 2011;
C. All Board minutes for the year 2013;
REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO
COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC 1ann fs Nn
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D. Federal tax returns for the years 1994, 1995, 1996, 1999, 2001, 2002, 2003,
2006, 2008, 2010, 2011, 2012, 2013;
E State tax Returns for 2003, 2006, 2010, 2012, 2013;
E All budgets before 2015;
G. Financial statements for 2009, 2011;
H Meeting agendas for 2003, 2004, 2007, 2009, 2011, 2012, 2013, 2014, 2015;
I. Meeting minutes for 2001, 2002, 2007, 2010.
Indeed, in her Declaration, Tanya Ruiz, the property manager for the Association does
not definitively state that these documents do not exist. She does not even state whether she
looked for these documents. Instead, she states “Documents no longer in existence might
include minutes...Documents no longer in possession of Little Orchard could include...”. The
terms “might” and “could” indicate that even Ms. Ruiz does not know whether these records
exist and as she stated she was “the custodian of records for Little Orchard,” she would be the
person that would know what documents did or did not exist. Even the Code of Civil
Procedure’s Discovery Act requires a responding party to state that “diligent search and
reasonable inquiry” has been made before said party can claim that documents do not exist.
Ms. Ruiz’ declaration supports what Petitioner Nguyen has been stating all along - the
Association has improperly, and in violation of her right of inspection, withheld documents from
her.
As their own custodian of records does not seem to know whether these documents
exist - indeed, she does not state that she even looked for them - good cause exists for the
court to grant the petition, order compliance, and appoint one or more competent inspectors
or accountants to audit the books and records kept in California, to investigate the property,
funds, and affairs of the corporation, and to report thereon in any manner that the court may
direct. Corp. Code §8336.
Moreover, a Respondent may not simply deny the existence of the records.
The corporation is required to keep: (1) Adequate and correct books and records of
account; (2) minutes of the proceedings of its members, board and committees of the board;
REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO
COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC 2and (3) a record of its members giving their names and addresses and the class of
membership held by each. See Corp. Code § 8320.
These minutes and other books and records shall be kept either in written form or in any
other form capable of being converted into clearly legible tangible form or in any combination
of the foregoing. When minutes and other books and records are kept in a form capable of
being converted into clearly legible paper form, the clearly legible paper form into which those
minutes and other books and records are converted shall be admissible in evidence, and
accepted for all other purposes, to the same extent as an original paper record of the same
information would have been, provided that the paper form accurately portrays the record. Id.
In addition, as noted above, Corporations Code Section 7160 provides that a non-profit mutual
benefit corporation shall keep at its principal office in this state the original or a copy of its
articles and bylaws as amended to date.
The Little Orchard Business Park Owners Association Bylaws further provide,
ARTICLE X
BOOKS AND RECORDS
10.1 Inspection by Members. The membership register (including
names, addresses and voting rights), books of account and minutes of meetings
of the members, of the Board, and of committees shall be made available for
inspection and copying by any member of the Association, or by his duly
appointed representative, at any reasonable time and for a purpose reasonably
related to his interest as a member, at the office of the Association or at such
other place within the project as the Board shall prescribe.
10.2 Rules for Inspection. The Board shall establish reasonable rules
with respect to:
A. Notice to be given to the custodian of the records by the
member desiring to make the inspection;
B. Hours and days of the week when such an inspection may
be made;
Cc. Payment of the cost of reproducing copies of documents
requested by a member.
10.3 Inspection by Directors. Every director shall have the absolute
right at any reasonable time to inspect all books records and documents of the
Association and the physical properties owned or controlled by the Association.
The right of inspection by a director includes the right to make extracts and
copies of documents, at the expense of the Association.
REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO
COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC. 310.4 Documents provide by Board: Upon written request, the Board
shall, within ten (10) days of the mailing or delivery of such request, provide the
owner of a unit with a copy of the governing documents of the project, a copy of
the most recent financial statement of the Association distributed pursuant to
section 8.7D(1), together with a true statement in writing from an authorized
representative of the Association as to the amount of nay assessments levied
upon the condominium which are unpaid on the date of the statement, including
late charges, interest, and costs of collection which, as of the date of the
statement, are or may be made a lien upon the condominium. The Board may
impose a fee for providing such documents and statement, but in no event shall
the fee exceed the reasonable cost to prepare and reproduce the requested
documents.
The Court may order that all expenses of an investigation be paid or shared by the
corporation. Id. In ordering the expenses of an investigation to be paid or shared by a
corporation, the court may exercise expeditious and timesaving methods. See Koshaba v.
Koshaba (1942) 56 CA2d 302, 312, 132 P2d 854. For instance, a court acted properly in fixing
the amount of an audit, making it a preferred charge against the corporation. Koshaba v.
Koshaba (1942) 56 CA2d 302, 311-312, 132 P2d 854. The cost for this competent inspection
should be borne by the Association as it is the Association that has unilaterally and without
justification withheld these documents from Petitioner for almost three years.
OBJECTIONS TO MEMBERSHIP LIST WAIVED
Where the corporation seeks to object to the demand for the membership list, it has 10
days to file a petition with the superior court, or the right to object is waived. Corp. Code
§8331.
Here, the Association has not timely filed a Petition with the Court, therefore, any
objections are waived and the Membership List and the Court should order the Association to
produce the Membership List.
ATTORNEYS FEES WARRANTED
Where the court finds the failure of the corporation to comply with a proper demand
thereunder was without justification, the court may award the member reasonable costs and
expenses, including reasonable attorneys’ fees, in connection with such action or proceeding.
Corp. Code §8337.
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REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO
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Here, as set forth above, Respondent failed to establish that the documents that have
not been produced do, in fact, not exist. The Association’s own custodian of records merely
alleges that the documents “might” no longer exist or “could” no longer be in the Association's
possession.
The missing documents are necessary for Ms. Nguyen to investigate the financial
condition of the Association and the propriety of the Association’s board activities and of the
board members (including duties as a member of any board committee on which the director
may serve), and to determine her rights and obligations as it pertains to the Association.
CONCLUSION
Based upon the foregoing and as set forth in the Petition, Petitioner requests that
(1) Respondent make available to Petitioner, in written form, for inspection and the making of
extracts therefrom, the corporation's accounting books and records; the minutes of proceedings
of the shareholders, the minutes of proceedings of the board, and the minutes of proceedings
of the committees of the board of South of Tenth Business Center Unit Owners Association;
the corporate bylaws; records of the names, addresses and holdings of members, etc. as
describe in the Petition and (2) appointment of one or more competent inspectors or
accountants to audit the books and records of the corporation and investigate the property,
funds and affairs of the corporation and to report thereon in such manner as the court may
direct, with such expenses of the investigation or audit to be paid by the Corporation.
ROBERTS + ELLIOTT
Law Corporation
Attorneys for ra ner
Ye
pateo. G- 7 / 5 By:
REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO
COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC. 5PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
| am employed in the County of Santa Clara, State of California. | am over the age
of 18 and not a party to the within action; my business address is 150 Almaden Boulevard,
Suite 950, San Jose, California.
On August 3, 2018, | served the document described as REPLY IN SUPPORT OF
PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION
RECORDS AND INFORMATION ETC. in this action by:
By email and placing a true copy thereof in a sealed United States Postal Service
envelope for collection and mailing following ordinary business practices at my aforesaid
business address; | am readily familiar with the business’ practice of collection and
processing of correspondence for mailing with the United States Postal Service; that
correspondence is deposited with the United States Postal Service, the same day as
collection in the ordinary course of business.
The name(s) and address(es) of the persons served as shown on the envelope are
as follows:
Mr. Ronald M. St. Marie
ADAMS STIRLING PLC
2566 Overland Avenue
Suite 730
Los Angeles, CA 90064
Email: rstmarie@adamsstirling.com
Executed on August 3, 2018, at San Jose, California.
| declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
CBF A Signature
Preview
YN Dw s ROBERTS + ELLIOTT Law Corporation JAMES ROBERTS, SBN 98804 SHARMI SHAH, SBN 233110 150 Almaden Boulevard Suite 950 San Jose, CA 95113 Telephone: (408) 275-9800 Fax: (408) 287-3782 Email: jroberts@robertselliott.com sshah@robertselliott.com Attorneys for Petitioner Julie T. Nguyen IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA GENERAL JURISDICTION JULIE T. NGUYEN, No. 17CV317898 REPLY IN SUPPORT OF PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC Petitioner, vs. LITTLE ORCHARD BUSINESS PARK OWNERS ASSOCIATION, Date: August 9, 2018 Time: 9:00 A.M. Respondent. Dept: 6 Judge: Hon. Theodore Zayner IT IS UNCONTESTED THAT CERTAIN DOCUMENTS WERE NOT PRODUCED Petitioner Nguyen has been requesting documents from the Association, and stonewalled, for almost three years - since on or about September 10, 2015. Respondent Little Orchard Business Park Owners Association (hereinafter “the Association”) does not contest the fact that the following records were not provided for inspection: A. All annual meeting minutes prior to 2011; B. All annual meeting reports prior to 2011; C. All Board minutes for the year 2013; REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC 1ann fs Nn nN if 12 13 14 15 16 17 18 19 20 21 28, 23 24 25 26 27 28 D. Federal tax returns for the years 1994, 1995, 1996, 1999, 2001, 2002, 2003, 2006, 2008, 2010, 2011, 2012, 2013; E State tax Returns for 2003, 2006, 2010, 2012, 2013; E All budgets before 2015; G. Financial statements for 2009, 2011; H Meeting agendas for 2003, 2004, 2007, 2009, 2011, 2012, 2013, 2014, 2015; I. Meeting minutes for 2001, 2002, 2007, 2010. Indeed, in her Declaration, Tanya Ruiz, the property manager for the Association does not definitively state that these documents do not exist. She does not even state whether she looked for these documents. Instead, she states “Documents no longer in existence might include minutes...Documents no longer in possession of Little Orchard could include...”. The terms “might” and “could” indicate that even Ms. Ruiz does not know whether these records exist and as she stated she was “the custodian of records for Little Orchard,” she would be the person that would know what documents did or did not exist. Even the Code of Civil Procedure’s Discovery Act requires a responding party to state that “diligent search and reasonable inquiry” has been made before said party can claim that documents do not exist. Ms. Ruiz’ declaration supports what Petitioner Nguyen has been stating all along - the Association has improperly, and in violation of her right of inspection, withheld documents from her. As their own custodian of records does not seem to know whether these documents exist - indeed, she does not state that she even looked for them - good cause exists for the court to grant the petition, order compliance, and appoint one or more competent inspectors or accountants to audit the books and records kept in California, to investigate the property, funds, and affairs of the corporation, and to report thereon in any manner that the court may direct. Corp. Code §8336. Moreover, a Respondent may not simply deny the existence of the records. The corporation is required to keep: (1) Adequate and correct books and records of account; (2) minutes of the proceedings of its members, board and committees of the board; REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC 2and (3) a record of its members giving their names and addresses and the class of membership held by each. See Corp. Code § 8320. These minutes and other books and records shall be kept either in written form or in any other form capable of being converted into clearly legible tangible form or in any combination of the foregoing. When minutes and other books and records are kept in a form capable of being converted into clearly legible paper form, the clearly legible paper form into which those minutes and other books and records are converted shall be admissible in evidence, and accepted for all other purposes, to the same extent as an original paper record of the same information would have been, provided that the paper form accurately portrays the record. Id. In addition, as noted above, Corporations Code Section 7160 provides that a non-profit mutual benefit corporation shall keep at its principal office in this state the original or a copy of its articles and bylaws as amended to date. The Little Orchard Business Park Owners Association Bylaws further provide, ARTICLE X BOOKS AND RECORDS 10.1 Inspection by Members. The membership register (including names, addresses and voting rights), books of account and minutes of meetings of the members, of the Board, and of committees shall be made available for inspection and copying by any member of the Association, or by his duly appointed representative, at any reasonable time and for a purpose reasonably related to his interest as a member, at the office of the Association or at such other place within the project as the Board shall prescribe. 10.2 Rules for Inspection. The Board shall establish reasonable rules with respect to: A. Notice to be given to the custodian of the records by the member desiring to make the inspection; B. Hours and days of the week when such an inspection may be made; Cc. Payment of the cost of reproducing copies of documents requested by a member. 10.3 Inspection by Directors. Every director shall have the absolute right at any reasonable time to inspect all books records and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a director includes the right to make extracts and copies of documents, at the expense of the Association. REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC. 310.4 Documents provide by Board: Upon written request, the Board shall, within ten (10) days of the mailing or delivery of such request, provide the owner of a unit with a copy of the governing documents of the project, a copy of the most recent financial statement of the Association distributed pursuant to section 8.7D(1), together with a true statement in writing from an authorized representative of the Association as to the amount of nay assessments levied upon the condominium which are unpaid on the date of the statement, including late charges, interest, and costs of collection which, as of the date of the statement, are or may be made a lien upon the condominium. The Board may impose a fee for providing such documents and statement, but in no event shall the fee exceed the reasonable cost to prepare and reproduce the requested documents. The Court may order that all expenses of an investigation be paid or shared by the corporation. Id. In ordering the expenses of an investigation to be paid or shared by a corporation, the court may exercise expeditious and timesaving methods. See Koshaba v. Koshaba (1942) 56 CA2d 302, 312, 132 P2d 854. For instance, a court acted properly in fixing the amount of an audit, making it a preferred charge against the corporation. Koshaba v. Koshaba (1942) 56 CA2d 302, 311-312, 132 P2d 854. The cost for this competent inspection should be borne by the Association as it is the Association that has unilaterally and without justification withheld these documents from Petitioner for almost three years. OBJECTIONS TO MEMBERSHIP LIST WAIVED Where the corporation seeks to object to the demand for the membership list, it has 10 days to file a petition with the superior court, or the right to object is waived. Corp. Code §8331. Here, the Association has not timely filed a Petition with the Court, therefore, any objections are waived and the Membership List and the Court should order the Association to produce the Membership List. ATTORNEYS FEES WARRANTED Where the court finds the failure of the corporation to comply with a proper demand thereunder was without justification, the court may award the member reasonable costs and expenses, including reasonable attorneys’ fees, in connection with such action or proceeding. Corp. Code §8337. It REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC 4A F BN So 0 em ND 12 13 14 15 16 17 18 19 20 ot 22 23 24 25 26 27 28 Here, as set forth above, Respondent failed to establish that the documents that have not been produced do, in fact, not exist. The Association’s own custodian of records merely alleges that the documents “might” no longer exist or “could” no longer be in the Association's possession. The missing documents are necessary for Ms. Nguyen to investigate the financial condition of the Association and the propriety of the Association’s board activities and of the board members (including duties as a member of any board committee on which the director may serve), and to determine her rights and obligations as it pertains to the Association. CONCLUSION Based upon the foregoing and as set forth in the Petition, Petitioner requests that (1) Respondent make available to Petitioner, in written form, for inspection and the making of extracts therefrom, the corporation's accounting books and records; the minutes of proceedings of the shareholders, the minutes of proceedings of the board, and the minutes of proceedings of the committees of the board of South of Tenth Business Center Unit Owners Association; the corporate bylaws; records of the names, addresses and holdings of members, etc. as describe in the Petition and (2) appointment of one or more competent inspectors or accountants to audit the books and records of the corporation and investigate the property, funds and affairs of the corporation and to report thereon in such manner as the court may direct, with such expenses of the investigation or audit to be paid by the Corporation. ROBERTS + ELLIOTT Law Corporation Attorneys for ra ner Ye pateo. G- 7 / 5 By: REPLY IN SUPPORT PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC. 5PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA | am employed in the County of Santa Clara, State of California. | am over the age of 18 and not a party to the within action; my business address is 150 Almaden Boulevard, Suite 950, San Jose, California. On August 3, 2018, | served the document described as REPLY IN SUPPORT OF PETITION FOR WRIT OF MANDATE TO COMPEL INSPECTION OF CORPORATION RECORDS AND INFORMATION ETC. in this action by: By email and placing a true copy thereof in a sealed United States Postal Service envelope for collection and mailing following ordinary business practices at my aforesaid business address; | am readily familiar with the business’ practice of collection and processing of correspondence for mailing with the United States Postal Service; that correspondence is deposited with the United States Postal Service, the same day as collection in the ordinary course of business. The name(s) and address(es) of the persons served as shown on the envelope are as follows: Mr. Ronald M. St. Marie ADAMS STIRLING PLC 2566 Overland Avenue Suite 730 Los Angeles, CA 90064 Email: rstmarie@adamsstirling.com Executed on August 3, 2018, at San Jose, California. | declare under penalty of perjury under the laws of the State of California that the above is true and correct. CBF A Signature