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November 02, 2002
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Case No: CASE NO. INC 021408 - Eva Sanchez v Desert Crest Community Association
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California
Superior Court
County of Riverside
Branch: Indio
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EVA SANCHEZ
SARAH FUNDERBURK
WILBUR HOWARD
CHARLES HONEYCUTT
EIKO HONEYCUTT
JOHN WILLOUGHBY
ELIZABETH BETTY RUTHERFORD
LUCILLE SEELEY
VIRGINIA BERGER
HELEN DeSARNO
NANCY NELSON
JOAN BOWMAN
PAT JACKSON
and ROES 1through 100
Inclusive
Represented by: LAW OFFICE OF DAVE M. BARELA (SBN 102601)
v.
Desert Crest Community Association
OSCA Developement
Desert Crest County Club
Represented by: Simon Freedman, Peters & freedman
CAI Member
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Summary
Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, OSCA DEVELOPMENT COMPANY, (hereinafter referred to as "OSCA"), was/is a duly licensed California corporation, doing business as DESERT CREST COUNTRY CLUB (hereinafter referred to as DESERT CREST), with its principal place of business in the City of Desert Hot Springs, County of Riverside, State of California.
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Causes of Action: Intentional Infliction of Emotional Distress, Breach of declaration of Restrictions,Negligent Inflictional of Emotional Distress, Elderly Abuse, Violation of California Constitution, Breach of Covenant of Good and Fair Dealing, Declaratory Refielf
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Citation: CASE NO. INC 021408 |
Lawsuit Text
LAW OFFICE OF DAVE M. BARELA (SBN 102601)
556 N. Diamond Bar Blvd., Suite 300
Diamond Bar, CA 91765
Telephone: (909) 861-1111
Facsimile: (909) 861-1814
Attorney for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE, INDIO COURT
EVA SANCHEZ, SARAH FUNDERBURK, ) CASE NO. INC 021408
WILBUR HOWARD, CHARLES )
HONEYCUTT, EIKO HONEYCUTT, ) THIRD AMENDED COMPLAINT FOR
JOHN WILLOUGHBY, ELIZABETH ) DAMAGES FOR:
WILLOUGHBY, VICTOR RUTHERFORD, )
BETTY RUTHERFORD, LUCILLE ) 1. BREACH OF DECLARATION OF
SEELEY, VIRGINIA BERGER, HELEN ) RESTRICTIONS
DeSARNO, NANCY NELSON, JOAN )
BOWMAN, PAT JACKSON, and ROES 1) 2. INTENTIONAL INFLICTION OF
through 100, Inclusive, ) EMOTIONAL DISTRESS
)
Plaintiffs,) 3. NEGLIGENT INFLICTION OF
) EMOTIONAL DISTRESS
vs. )
) 4. ELDERLY ABUSE UNDER WELFARE
OSCA DEVELOPMENT COMPANY, a ) AND INSTITUTIONS CODE SECTION
California Corporation, dba ) 15610 et seq.
DESERT CREST COUNTRY CLUB, )
DESERT CREST COMMUNITY ) 5. VIOLATION OF CALIFORNIA
ASSOCIATION, JOHN ERICKSON, ) CONSTITUTION, ARTICLE 1,
JOHN J. FORD, JILL V. FORD, ) SECTION 1, RIGHT TO PRIVACY
MARGARET MOORE, and DOES 1 )
through 100, Inclusive, ) 6. FRAUD AND MISREPRESENTATION
)
Defendants.) 7. BREACH OF COVENANT OF GOOD
) AND FAIR DEALING
)
) 8. DECLARATORY RELIEF
Plaintiffs, EVA SANCHEZ, SARAH FUNDERBURK, WILBUR HOWARD,
CHARLES HONEYCUTT, EIKO HONEYCUTT, JOHN WILLOUGHBY, ELIZABETH
WILLOUGHBY, VICTOR RUTHERFORD, BETTY RUTHERFORD, LUCILLE SEELEY,
VIRGINIA BERGER, HELEN DeSARNO, NANCY NELSON, JOAN BOWMAN, PAT
JACKSON, and DOES 1 through 100, allege as follows:
PRELIMINARY ALLEGATIONS
1. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, OSCA DEVELOPMENT COMPANY, (hereinafter referred to as "OSCA"), was/is a duly licensed California corporation, doing business as DESERT CREST COUNTRY CLUB (hereinafter referred to as DESERT CREST), with its principal place of business in the City of Desert Hot Springs, County of Riverside, State of California.
2. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, DESERT CREST, is a mobilehome community consisting of approximately 577 lots or homesites in which each Homeowner owns their own respective lot or homesite. The original developer, Arthur Eldridge, constructed this community in 3 phases or sections.
3. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, DESERT CREST COMMUNITY ASSOCIATION (hereinafter referred to as "ASSOCIATION"), is an unknown business organization, composed of all Homeowners of Defendant, DESERT CREST. It is further alleged that all decisions of the ASSOCIATION are made by elected board members.
4. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, OSCA, is the owner of the real property more commonly referred to as DESERT CREST, with the exception that each Homeowner owns their own respective lot or homesite.
5. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, DESERT CREST is not a Common Interest Development which is subject to the Davis- Sterling (Sections 1350-1373 of the California Code.)
6. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, JOHN ERICKSON, was the President, and/or one of the owners, of Defendant OSCA.
7. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, JOHN FORD, was an employee, and/or officer, and/or one of the owners, of Defendant OSCA. It is further alleged that for a period of time, Defendant, JOHN FORD, was acting President of Defendant, DESERT CREST.
8. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, JILL V. FORD, was an employee, and/or officer, and/or one of the owners, of Defendant OSCA. It is further alleged that for a period of time, Defendant, JILL V. FORD, was acting as General Manager of Defendant, DESERT CREST.
9. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, MARGARET MOORE, was an employee, and/or officer, and/or one of the owners, of Defendant OSCA. It is further alleged that for a period of time, Defendant, MARGARET MOORE, was acting as Manager of Defendant, DESERT CREST.
10. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, Defendant, OSCA, owns and manages Defendant, DESERT CREST, for the use and benefit of the Homeowners and residents of the adjacent, Defendant ASSOCIATION. It is further alleged that at all times herein mentioned, DESERT CREST was/is the sole owner of the Common Areas or recreational facilities located at the Desert Crest Country Club. These recreational facilities include a club house, swimming pool, spas, shuffle board, a 9-hole golf course, and other amenities which are managed and operated by DESERT CREST. It is further alleged that at all times herein mentioned, there are no common areas or reciprocal easements between Defendant, OSCA, and the Homeowners.
11. Plaintiffs are ignorant of the true names and capacities of Defendants, sued herein as DOES 1 to 100, and, therefore, sues these Defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when they have been ascertained.
12. Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, each of the Defendants sued herein was acting as the agent, employee and/or representative of each of the other Defendants, and in doing the things herein alleged, was acting within the course and scope of said agency, employment, and/or representative, and/or aided abetted, cooperated with, and/or conspired with, all other Defendants, and/or each of them, to do the acts herein alleged.
13. At all times herein mentioned, Plaintiffs, including ROES 1 through 100, were individual Homeowners, all of whom are/were in their (age) sixties (60's), seventies (70's), and eighties (80's), and all of whom were/are residents of DESERT CREST, located in the City of Desert Hot Springs, County of Riverside, State of California.
STATEMENT OF FACTS
14. On March 27, 1963, the original developer of Defendant, DESERT CREST, Arthur Eldridge, recorded the "Declaration of Restrictions of Desert Crest Country Club" for Section 1 and Section
2, with the County Recorder's Office of Riverside County. The intent of this Declaration was to essentially establish covenants, codes, and restrictions, by which the Declarant and all prospective Homeowners were to be contractually obligated to follow.
15. On May 21, 1971, the original developer of Defendant, DESERT CREST, Arthur Eldridge, recorded the "Declaration of Restrictions of Desert Crest Country Club", with the County Recorder's Office of Riverside County. The intent of this Declaration was to essentially establish covenants, codes, and restrictions, by which Defendant, DESERT CREST, and their agents and/or representatives, and all Homeowners, both current and prospective, were to be contractually obligated to follow.
Paragraph 19 of this Declaration states in relevant part that:
"...Members of the Desert Crest Community Association shall have the right, by the payment of fees as set forth below, to use the facilities of Desert Crest Hot Springs in accordance with the rules and regulations as set forth by said Desert Crest Hot Springs."
"Members of the Desert Crest Community Association
pay to Desert Crest Hot Springs, as compensation for the privileges herein granted and for the services furnished or secured by desert Crest Hot Springs, such amount as may be assessed ratably against said member by Declarant each month, provided, however, that the aggregate amount as assessed per member shall not at any time exceed Two Hundred Sixteen Dollars ($216.00) per year, provided that this maximum may be increased by desert Crest Hot Springs in the same proportion as he cost of living index of the Untied States Department of Labor increases above such index on the date of recording these restrictions."
"Said fees, however, shall not include the privilege
of playing golf on the golf course owned by Desert Crest
Hot Springs. Golf playing privileges are hereby extended to the members of the Desert Crest Community Association on a non-exclusive basis by the payment of such fees as may from time to time be set by desert Crest Hot Springs."
16. On or about December 25, 1971, the developer, Arthur Eldridge, made a gift of golf to the Homeowners set forth in a Special Notice. Essentially, this notice stated, in relevant part, that "Effective December 25, 1971, the privilege of playing golf will be included as part of the monthly club dues of $18.00 per month for existing owners in UNITS 1 and 2. Owners required to present their DESERT CREST badge to starter. The monthly club fee for the new unit will also be $18.00 per month plus $2.00 for GOLF or a total of $20.00 per month including golf..."
17. Commencing on or about 1982, welcoming letters from Defendant, DESERT CREST, were distributed to prospective Homeowners, including Plaintiffs, and/or each of them, essentially advising them that as members of the club, they did not have to pay for golf. These welcoming letters were distributed with the intent of inducing prospective buyers to purchase a lot or homesite. 18. At all times herein mentioned, the gift of golf, as more particularly described in Paragraph 17, was, in fact, an incentive, and/or inducement, for Plaintiffs, and/or each of them, to purchase their lot or homesite.
19. From on or about December 25, 1971, through approximately November 1998, Defendant, DESERT CREST, did not charge Homeowners, including Plaintiffs, for playing golf. However, from approximately November 1998 to the present, Defendant, DESERT CREST, began to charge Homeowners, including Plaintiffs, for playing golf.
20. On May 19, 1992, the original developer of Defendant, DESERT CREST, Arthur Eldridge, recorded the "First Amendment to the Declaration of Restrictions of Desert Crest Country Club" for Sections I, II and III. This Amendment essentially required that at least one of the residents of a mobilehome in the community must be at least fifty-five (55) years of age, and all other residents of the mobilehome must be at least 45 years of age.
21. On August 19, 1998, and in the case of OSCA Devopment Company, et al. vs. Gertrude Elkin, et al. vs. OSCA Development, et al., Case No. 080293, the Honorable Judge, Lawrence W. Fry, essentially ruled after trial as follows:
a) DESERT CREST is not a Common Interest Development which is subject to the Davis-Sterling (Sections 1350- 1373 of the California Code), and there are no common areas or reciprocal easements between OSCA and the Homeowners.
b) All Homeowners of DESERT CREST have the right to
become members, at their own election, of the Desert Crest Hot Springs or DESERT CREST, and as members, have the right to use the recreational facilities, and the obligation to pay monthly assessments/dues.
c) The Homeowners have no obligation to pay monthly assessments/dues to Desert Hot Springs, nor DESERT CREST, unless said members elect to become members of the Desert Crest Hot Springs or DESERT CREST.
In the Statement of Decision, Judge Fry stated that the Homeowners of DESERT CREST are not obligated to pay common area assessments if they do not use the common area facilities owned by OSCA dba DESERT CREST. Judge Fry interpreted Paragraph 19 of the Covenants, Codes and Regulations (CC&Rs) as "giving the Homeowners the right to become a member of the Club, use of the Common Areas, in consideration for the payment of dues. However, if the privilege is not used, nothing is owed to the owner of these facilities." Judge Fry further added "that without the application of Davis-Sterling, the owner of the Common Area cannot enforce any requirement for homeowners to pay assessments (or dues) whether or not the homeowners use the Common Area facilities."
22. The aforementioned Judgment entered by Judge Fry was subsequently appealed by Defendant, OSCA, to the California Court of Appeal, Fourth District, Division Two.
23. Plaintiffs are informed and believe and thereon allege that in an effort to circumvent Judge Fry's ruling, on June 18, 1999, Defendants, and/or each of them, approved, without a legitimate and/or legal basis, the execution of a "Second Amendment to Declaration of Restrictions of Desert Crest Country Club" for Sections I, II, and III. This Second Amendment was essentially a deliberate attempt to make the payment of the assessments (or dues) mandatory, whether or not the Homeowners used the recreational facilities. Plaintiffs are further informed and believe and thereon allege, that the aforementioned Second Amendment(s) were not properly voted on by the Homeowners and were, therefore, invalid and had no force and effect. Specifically, Plaintiffs are of the belief and understanding that the aforementioned Second Amendment did not have the approval of the percentage of homeowners as required by Civil Code Section 1355.
24. On July 2, 1999, Defendants, ASSOCIATION and OSCA, recorded the "Second Amendment to the Declaration of Restrictions of Desert Crest Country Club" for Sections I, II and III, as described in Paragraph 23, above, and for the reasons set forth in Paragraph 23.
25. On February 17, 2000, and in a number of Small Claims cases brought by OSCA Development Company, et al.,(in which Plaintiffs in this action were Defendants), and which were consolidated by this Court, the Honorable Judge, Thomas D. Hudspeth, upheld Judge Fry's ruling, referred to above, rendered Judgment for the Defendants, and essentially held that the Homeowners of DESERT CREST have no obligation to pay monthly assessments unless the Homeowners elect to become members of DESERT CREST. In rendering his decision, Judge Hudspeth also advised Defendant, JOHN J. FORD, that the Homeowners were not given proper notice of the aforementioned Second Amendment(s) and, therefore, they were improper and unenforceable. As Defendant, OSCA, was the Plaintiff in those Small Claims actions, Judge Hudspeth's decision was final and could not be appealed.
26. On or about March 14, 2000, the California Court of Appeal, Fourth District, Division Two, rendered their written opinion, affirming "the trial court's ruling that Desert Crest Community is not a common interest development and that membership in OSCA's private country club is not mandatory."
27. Subsequent to Judge Fry's ruling of August 19, 1998; Judge Hudspeth's ruling of February 17, 2000; the Appellate Opinion of on or about March 14, 2000, and in blatant disregard of each such ruling, Defendants, JOHN J. FORD, and/or JILL FORD, and/or, MARGARET MOORE, continuously and wrongfully attempted to force, and/or intimidate, and/or harass Plaintiffs to pay the monthly assessments. These attempts consisted of, but were not limited to the following:
Verbally advising Plaintiffs on numerous occasions, the specific dates in which Plaintiffs are not certain, that despite any court's ruling to the contrary, they were still required to pay the annual assessments; mailing notices to Plaintiffs advising them that they were still required to pay the annual assessments; and distributing flyers advising Homeowners that despite any court's ruling to the contrary, Homeowners were still required to pay the annual assessments.
Threatening Plaintiffs on occasions, the specific dates in which Plaintiffs are not certain, by making comments such as "Don't make me get physical with you" and "If you don't pay the annual assessments, you can be evicted."
During occasions, the specific dates in which Plaintiffs are not certain, when the clubhouse was being used for Jam or Dance Sessions, or on Bingo Nights, which were open to the public, Plaintiffs were either refused admittance after being told that they were not allowed to participate until they paid the annual assessments, or if Plaintiffs were already present, they were physically escorted from the clubhouse after being informed that they could not remain and participate because they did not pay their annual assessments.
Cutting the locks, or in some other manner, physically forcing open Plaintiffs' lockers at the clubhouse and removing their clothing, and advising them that they could not use their lockers until they paid for the annual assessments.
Because of these attempts of force, and/or intimidation, and/or harassment, which, in some instances was effective because of a Homeowner's age and vulnerability, some of the Plaintiffs actually paid the annual assessments. In some instances, some Homeowners opted to pay for eleven (11) months in advance in order to get the twelfth (12) month free, an option which had been offered by Defendants, and/or each of them. However, in those instances, Defendant's, and/or each of them, refused to honor the option and would not allow those Plaintiffs the discounted amount.
FIRST CAUSE OF ACTION
[Breach of Declaration of Restrictions]
(As to all Defendants)
28. Plaintiffs replead and reallege Paragraphs 1 through 27,
and incorporates the same by reference as though set forth fully
herein.
29. At all times herein mentioned, all designated Plaintiffs and all designated Defendants were contractually obligated to comply with the provisions of Paragraph 19 of the "Declaration of Restrictions of Desert Crest country Club", recorded on May 21, 1971, as more particularly described in Paragraph 15.
30. At all times herein mentioned, and based on information and belief, Plaintiffs' allege that the aforementioned Second Amendment(s), recorded on July 2, 1999, were not properly voted on by the Homeowners and were, therefore, invalid and had no force and effect. Specifically, Plaintiffs are of the belief and understanding that the aforementioned Second Amendment did not have the approval of the percentage of homeowners as required by Civil Code Section 1355. Therefore, it is further alleged that despite the Second Amendment(s) recorded on July 2, 1999, all designated Plaintiffs and all designated Defendants were still contractually obligated to comply with the provisions of Paragraph 19 of the "Declaration of Restrictions of Desert Crest country Club", recorded on May 21, 1971, as more particularly described in Paragraph 15.
31. In doing the things herein alleged, as more particularly set forth in Paragraphs 17, 19, 23-24, 27, and 30, Defendants, and/or each of them, breached Paragraph 19 of the Declaration of Restrictions, as more specifically described in Paragraph 27 above.
32. In doing the things herein alleged, as more particularly set forth in Paragraphs 17, 19, 23-24, 27, and 30, Defendants, and/or each of them, negligently, and/or carelessly, pursued a course of conduct, which, in fact, caused a breach of the duty of care owed to Plaintiffs, and/or each of them. As such, at all times herein mentioned, Defendants, and/or each of them, knew, or should have known, and it was, therefore, foreseeable, that their conduct would cause Plaintiffs, and/or each of them, to suffer severe, extreme and permanent mental and emotional distress, including, but not limited to shock, nervousness, anxiety, humiliation, mortification, anguish, depression, and psychological trauma and damage to each Plaintiff's nervous system.
33. At all times herein mentioned, Defendants, and/or each of them, knew, or should have known, and it was, therefore, foreseeable, that Plaintiff's were more susceptible to threats of financial harm, bodily harm, intimidation, and eviction due to their advanced age.
34. As a direct and legal result of the breach of Paragraph 19 of the Declaration of Restrictions, recorded on May 21, 1971, by Defendants, and/or each of them, as more particularly set forth in Paragraphs 17, 19, 23-24, 27, and 30, Plaintiffs, and/or each of them, did, in fact, suffer monetary damages by actually paying annual assessments, which, otherwise, said Plaintiffs were not required to pay, all in an amount to be determined according to proof at time of trial.
35. As a further direct and legal result of the breach of Paragraph 19 of the Declaration of Restrictions, recorded on May 21, 1971, by Defendants, and/or each of them, as more particularly set forth in Paragraphs 17, 19, 23-24, 27, and 30, Plaintiffs, and/or each of them, did, in fact, suffer, and continue to suffer, extreme and permanent mental and emotional distress, including, but not limited to shock, nervousness, anxiety, humiliation, mortification, anguish, depression, and psychological trauma and damage to each Plaintiff's nervous system, all in an amount to be determined according to proof at time of trial.
36. As a further direct and legal result of the breach of Paragraph 19 of the Declaration of Restrictions, recorded on May 21, 1971, Plaintiffs, and/or each of them, have incurred, and will continue to incur in the future, reasonable and necessary medical expenses, all to each Plaintiff's special damage in a sum to be determined according to proof at time of trial.
SECOND CAUSE OF ACTION
[Intentional Infliction of Emotional Distress]
(As to all Defendants)
37. Plaintiffs replead and reallege Paragraphs 1 through 27, and 30, and incorporates the same by reference as though set forth fully herein.
38. At all times herein mentioned, Defendants, and/or each of them, owed a duty of care to Plaintiffs, and/or each of them, to refrain from any acts, and/or conduct, which, in any way, would cause harm to Plaintiffs, and/or each of them.
39. In doing the things herein alleged, as more particularly set forth in Paragraphs 17, 19, 23-24, 27, and 30, Defendants, and/or each of them, intentionally, and/or willfully, and/or recklessly, pursued an outrageous and despicable course of conduct, thereby breaching their duty of care owed to Plaintiffs, and/or each of them. As such, at all times herein mentioned, Defendants, and/or each of them, knew, or should have known, and it was, therefore, foreseeable, that their conduct would cause Plaintiffs, and/or each of them, to suffer severe, extreme and permanent mental and emotional distress, including, but not limited to shock, nervousness, anxiety, humiliation, mortification, anguish, depression, and psychological trauma and damage to each Plaintiff's nervous system.
40. At all times herein mentioned, the course of conduct demonstrated by Defendants, and/or each of them, was outrageous and despicable due to the fact that Defendant's, and/or each of them, knew, or should have known, that Plaintiff's were more susceptible to threats of financial harm, bodily harm, intimidation, and eviction due to their advanced age.
41. As a direct and legal result of the aforementioned wrongful, and/or negligent, and/or reckless conduct of Defendants, and/or each of them, as more particularly set forth in Paragraphs 17, 19, 23-24, and 27, Plaintiffs, and/or each of them, did, in fact, suffer, and continue to suffer, extreme and permanent mental and emotional distress, including, but not limited to shock, nervousness, anxiety, humiliation, mortification, anguish, depression, and psychological trauma and damage to each Plaintiff's nervous system, all in an amount to be determined according to proof at time of trial.
42. As a further direct and legal result of the aforementioned wrongful, and/or negligent, and/or reckless conduct of Defendants, and/or each of them, as more particularly set forth in Paragraphs 17, 19, 23-24, and 27, Plaintiffs, and/or each of them, have incurred, and will continue to incur in the future, reasonable and necessary medical expenses, all to each Plaintiff's special damage in a sum to be determined according to proof at time of trial.
43. The conduct of Defendants, and/or each of them, was intentional, willful, wrongful, knowing, and despicable, and was ratified by all other Defendants. As such, Plaintiffs, and each of them, seek an award of exemplary punitive damages, all in a sum to be determined according to proof at time of trial.
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COMPLA~1 (Word98)
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Eva Sanchez et al vs OSCA DEVELOPMENT COMPANY, DESERT CREST COUNTRY CLUB,
DESERT CREST COMMUNITY ,ASSOCIATION, JOHN ERICKSON,
JOHN J. FORD, JILL V. FORD, MARGARET MOORE, and DOES 1
through 100, Inclusive
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