by Kenneth Eade
“Flowers? I didn’t see any flowers,” said Tomassi.
“Neither did we,” said Bingman. But you said possible ricin poisoning, so we bagged it.”
“Let me know as soon as it’s tested.”
CHAPTER NINE
Judge Melissa Jones was a fat, pretentious woman, with a healthy dose of attitude for every pound, who had clawed her way to the Santa Barbara County Superior Court bench by proving that she could be just as good a lawyer as any man. The case of Haskins v. Orange Grove Homeowner’s Association was assigned to her for all purposes, along with the dozens of other cases on her law and motion calendar today. The court had been making budget cuts due to the poor economy, so Jones’ courtroom had been understaffed and overworked for the past year and everyone seemed cranky. Still, Brent was optimistic, because Judge Jones was as smart as she was tough, and he had woven a legal web for the Homeowners Association that he thought they could not escape from.
Brent’s opponent was Lydia Green, a young woman in her 30’s from the firm of Stafford and Green. Her father, Brian Green, had made a fortune milking homeowners associations of a good portion of their monthly dues. Homeowners associations were the best clients for Stafford and Green because they were all run by boards made up of homeowners themselves. Most of the board members were as picky as Barbara Densmore, and didn’t mind paying huge fees to enforce them. After all, it wasn’t their money. Lydia was smartly dressed, in a two piece suit, and had a Chanel briefcase as well as their latest bag. Business was good.
“Number eleven on today’s calendar, Haskins v. Orange Grove Homeowners Association. Counsel please state your appearances,” said Judge Jones into the microphone on her bench.
“Good morning, Your Honor, Brent Marks for the Plaintiff and moving party.”
Jones looked down from the bench at Brent through her oversized horn-rimmed glasses.
“Good morning Mr. Marks.”
“Good morning, Your Honor, Lydia Green for the Defendant, Orange Grove Homeowner’s Association.”
“Good morning, Ms. Green. This matter comes on today for a hearing on Nancy Haskins’ motion for a preliminary injunction against a foreclosure sale. As you may have noticed, I have not entered a tentative ruling in this case, but I have read the moving papers and the opposition. Mr. Marks, you’re the moving party, so I’d like to hear from you first.”
“Thank you, Your Honor. In order for a foreclosure sale on an involuntary assessment lien to be valid, the Defendant must not only follow strictly all the provisions of Civil Code 2924, but also the pre-foreclosure procedures in the Davis-Stirling Act, Civil Code Sections 1367.1 and 1367.4, for a foreclosure sale on a delinquent assessment lien to be valid.
“In Diamond v. Superior Court, the Court of Appeal ruled that the notice requirements of Sections 1367.1 and 1367.4 must be strictly construed, “pursuant to the plain language of the statutes and their legislative history. Failure to follow these pre-foreclosure requirements makes the foreclosure sale, the Notice of Default and the Notice of Sale null and void.
“In this case, the Defendant’s board did not vote to foreclose on the property, as required by the Davis-Stirling Act, until after it had already recorded the Notice of Default. The Code specifies that the decision must be made before commencing any foreclosure proceeding. Moreover, they did not personally serve the Plaintiff with the notice of the board’s decision to foreclose on the Plaintiff’s property, which is required by section 1367.4, serving it instead by substituted service. The Diamond case made it perfectly clear that these provisions must be strictly complied with, or any sale will be null and void.
“Both of these are fatal flaws which requires the Court to set aside the sale, and to declare the Notice of Default and Notice of Sale void. Since Mrs. Haskins is about to be put out of title, which will ultimately result in her eviction from her house, she would suffer irreparable injury if the Association were not enjoined from completing the foreclosure before this matter could proceed to trial.”
“Thank you, Mr. Marks. Ms. Green?”
Lydia Green stood up from the counsel table to make her argument at the podium. She was skinny, and would have been somewhat attractive had she not chosen to wear a masculine type suit. It looked like she had been in her father’s closet, trying on his clothes. Lydia knew that she had better make a convincing argument, because, at this point, if the injunction was granted, the case was virtually over.
“Thank you, Your Honor. First I would like to point out to the Court that Mr. Marks has a conflict of interest in this case. The president of the Association recently died, Your Honor, and, as you can see from the declaration attached to our supplemental papers, the Vice President of the Association, Frances Templeton, has a prior existing attorney client relationship with Mr. Marks.”
Brent frowned. He had represented Frances in a divorce some seven years ago. It had nothing to do with the Association.
“Ms. Green, I can’t deal with this on today’s motion. If you think Mr. Marks is conflicted, then you must raise that issue by a separate motion to disqualify. Now, please address the merits of the motion that is before me.”
“Thank you, Your Honor. While it is true that the board did not vote on foreclosure until after the Notice of Default was filed, it did vote to foreclose 30 days before filing the Notice of Sale. The statute says that the board vote to approve foreclosure must take place at least 30 days prior to any public sale. The decision being made 30 days before the Notice of Sale, the Defendant is in compliance with that requirement.
“With regard to the personal service, the statute states that personal service is required in accordance with the manner of service of a summons in Article 3 of Chapter 4 of the Code of Civil Procedure. Substituted service was effected upon Mrs. Haskins at her place of business, in full conformity with Article 3 of Chapter 4. Therefore, the Defendant is in compliance with that requirement.
“Moreover, Your Honor, there is no irreparable injury that the Plaintiff would incur. She owes the assessments, and the Association is entitled to foreclosure to collect them. There is no prejudice to the Plaintiff to wait until a trial of the merits in this case. If she prevails, her remedy is to set aside the sale and quiet title will still be available to her after foreclosure.”
“Mr. Marks,” asked Judge Jones, “The statute does say the board decision has to be made 30 days before any public sale. Why is the Association’s vote not compliant?”
Brent expected this question to arise, so he was prepared.
“Your Honor, the statute plainly says that ‘the decision to initiate foreclosure of a lien for delinquent assessments must be made at least 30 days before a public sale. The Association is trying to argue that their board made that decision before initiating foreclosure proceedings, which is also required by the statute, but the recording of a Notice of Default is the method of initiating a foreclosure proceeding under Civil Code section 2924, and the Diamond case makes it very clear that the decision must be made before the foreclosure is initiated. When the Association recorded the Notice of Default, it had already initiated foreclosure of the lien. You can’t comply with the statute by initiating foreclosure proceedings, then voting to approve the initiation of foreclosure proceedings when they are almost over. The plain meaning of the statute is that it has to be both 30 days before the sale as well as before initiating the proceedings.”
“What about the service? The statute says personal service, but it also states that service must be in accordance with the method of serving summons in Article 3. Doesn’t that include substituted service?”
Brent didn’t like the direction the Judge seemed to be moving in. He thought she was smarter than that. Perhaps she was just making a record in case she was appealed.
“Your Honor, the plain meaning of the statute, which the Diamond case says must be followed strictly, is that personal service is required. It states, ‘The board shall provide notice by personal service in accordance with the manner of s
ervice of summons in Article 3.’ Article 3 spells out the requirements for both personal service and substituted service. They are two separate types of service, and the statute clearly calls for personal service. Substituted service is not strict compliance with the statutory requirements because the plain meaning of the statute specifies personal service in accordance with Article 3 as the only method of service.
“This is supported by the legislative intent behind the statute. The legislative history of the sections is set forth in the Legislative Counsel’s Digest, which are cited in my brief. According to that legislative history of the bill and the plain meaning of the statute itself, personal service of notice of the decision to foreclose upon the owner/occupier is required as a condition of the right to foreclose. Without that personal service, the foreclosure right does not arise, no matter what.”
“Ms. Green, do you wish to be heard?”
“Yes, Your Honor. The statute is clearly ambiguous. It is obviously not the best written statute. It specifies that service by made pursuant to Article 3, and substituted service is one of the methods to effect personal service under Article 3. The Association is in complete compliance.”
“Thank you, Ms. Green.”
“Your Honor, may I be heard please on this point?”
“Of course, Mr. Marks.”
“Personal service is not effected by substituted service. They are two separate kinds of service specified in Article 3, and the statute clearly requires personal service. If you look at the legislative history, you will see that these protections were put into the Davis-Stirling Act to prohibit a homeowners’ association from taking a resident’s property for a relatively small assessment bill. The legislature clearly intended foreclosure to be a method to force the collection of delinquent assessments, not to dispossess residents of their property.
“The reason for the personal service to be in accordance with Article 3, Section 415.10 is to give notice of a legal process in order to comply with the principles of due process. The Fourteenth Amendment to the United States Constitution provides that ‘no state shall deprive any person of life, liberty or property without due process of law.’ The legislative history of the amendment creating Section 1367.4, plainly requires the HOA board to provide personal service to an owner/occupant of its decision to foreclose as a condition of foreclosure, which is a taking of property authorized by the state. Notice is a concept of due process, and since it required that notice to be given by personal service, as opposed to the other methods of service specified in the Code of Civil Procedure, the Legislature plainly prescribed the highest form of notice.
“The purpose of such service statutes is to assure that the highest form of due process is satisfied. Clearly, since the statute specifies personal service of the board’s decision is a precondition of foreclosure, the notice must be personally served before the commencement of any foreclosure proceedings, to allow the homeowner notice and the opportunity to defend against them.”
“Thank you both. The matter being submitted, I am ready to rule. I think the statute clearly says that the decision to foreclose has to be made 30 days before any public sale, and this was done.”
Brent was immediately deflated. He had lost, and Nancy would have to take her chances with the Bankruptcy Court.
“But,” continued Judge Jones, “I think that the statute clearly requires personal service of the notice of the board’s decision – not substituted service – so I am going to grant the motion for a preliminary injunction against foreclosure pending the trial on this matter.”
“Thank you, Your Honor,” said Brent, relieved.
“Thank you, Your Honor,” said the defeated Lydia Green.
Brent headed out of the courtroom, activating his cell phone to call Nancy and tell her the good news.
CHAPTER TEN
While Brent was celebrating his victory with Nancy, Detective Roland Tomassi was making the rounds, questioning each of Barbara Densmore’s neighbors. None of them had any kind words for Barbara. As he thumbed through his notes, an old VW van with a surfboard on top of it pulled into the driveway next door to Barbara’s townhome. As Tomassi approached the driver, a long haired blond man wearing flower patterned baggies and no shirt exited the car and began untying his surfboard from the roof rack.
“Hello!” called out Tomassi, as he approached.
“Sup dude?” Keith Michel greeted him.
“I’m a police detective. Name’s Detective Tomassi. Do you mind if I ask you a few questions about your neighbor, Barbara Densmore?”
“It’s a free country,” responded Keith Michel. “Did she croak?”
“Why do you ask?”
“Dude, she didn’t look like she was in too good ‘a shape when they took her out in the ambulance.”
“You saw them take her out?”
“Yeah.”
“You don’t seem to be too concerned about her.”
“Dude, she’s a pain in my ass. She’s a pain in everyone’s ass. Well, if you live here, that is…”
“I’m investigating her death.”
“Oh, so she did croak? Righteous!”
“You’re happy that she’s dead?”
“Dude, I didn’t kill her or anything, but I’m not gonna cry either. She was always so aggro, you know?”
“Aggro?”
“Yeah, you know, not cool, always messin’ with my vibe. Whenever I was all stoked and amped to go out, she’d come over and write me a ticket or some shit. She was a downer, man.”
“I see. Can you tell me how long you had been at home before you saw the ambulance come for her?”
“I dunno. Man, I don’t have a time clock or anything.”
“Rough estimate.”
“Man, I guess two, three hours?”
“Did you notice anything unusual over at her place during those two or three hours?”
“Dude, I don’t snoop on her or nothin’. I was just lookin’ out the window and saw the ambulance, is all. Oh, and I saw Frances Templeton, the other HOA Nazi, over there banging on Barbara’s door.”
“Was that the only time that day you saw Frances over there?”
“Yeah.”
“And when was that?”
“Dude!”
“Were you having any problems with Ms. Densmore?”
“Just the usual stuff. She didn’t like my curtains. You know, shit like that.”
“Yeah. Do you mind if I come in and take a look around?”
“Dude, you got a warrant? Knock yourself out.”
“How about if I take a look in your car instead? I’ll bet I could find some marijuana in there.”
“Dude, I’ve got a scrip for that, uh, for my medical condition.”
“I’ll bet you do. What’s your name?”
“Keith Michel.”
“Alright, Mr. Michel, here’s my card. In case you think of anything else, just give me a call.”
“Thanks, dude,” said Michel, taking the card. “I’ll be sure to file this in the appropriate place,” he added, smiling an ear to ear mouthful of yellow teeth.
As Tomassi turned away, Michel added, “Might want to check out the couple at 4440 Orange. They hated Barbara’s guts.”
“Thanks, I will.”
* * *
At 4440 Orange, Jean Goldstein looked through the peep hole on her front door.
“Can I help you?” she asked through the door.
“My name is Roland Tomassi, Detective with the Santa Barbara County Sheriff.”
Jean opened the door. “How can I help you, Detective?”
“I’d like to ask a few questions about Barbara Densmore.”
“What’s she done this time?”
“She died.”
Goldstein frowned.
“Died?”
“Yes, ma’am. I’m investigating her death.”
“I hope you don’t think we had anything to do with it?”
“Just talking to the neighbors, ma’am.
May I come in?”
“Of course.”
Jean led Detective Tomassi into her living room.
“Can I offer you a drink, Detective?”
“No, thank you.”
Detective Tomassi sat down on the couch in the hodge-podge of a living room, filled with family photographs of different sizes and shapes, and pulled out his notebook. Jean was in her late 40’s, with greying chestnut hair and amber eyes. Tomassi could see that, in her day, she must have been quite attractive, but, to him, she mostly looked sad.
“I understand you’re currently in litigation with the Homeowners’ Association?”
“Yes. Over the most ridiculous thing. A tree.”
“A tree?”
“My husband and I planted a Big Tooth Maple in the front yard to honor the life of our son, Thomas.”
“Thomas is deceased?”
Jean’s lip quivered. “At sixteen. We lost him in a tragic accident.” Her eyes welled up with tears.
“That him?” Tomassi asked, pointing to a picture of a young boy in a silver frame on the coffee table. Jean nodded, and wiped the tears from her eyes with her fingers.
“I’m sorry for your loss, ma’am.”
“Thank you, Detective. I don’t think it’s something that anyone can get used to, no matter how much time passes.”
“I suppose not, ma’am. I can’t imagine losing a child.”
