Association lawyer now wants $550,000 in legal fees from San Clemente lot owner, Michael Doyle

September 12, 2005

By HOA Voices (View author info)

Michael Doyle's lawsuit is just one of many recent San Clemente lawsuits where board members break laws, witnesses lie in court and and politically connected CAI lawyers and judges work together to strip victims of hundreds of thousands of dollars under the guise of "justice".

• The City of San Clemente approved Michael Doyle's plans to build his home on a one and three quarter acre lot.

• A board member wanted a 360 degree view and unleashed a multimillion dollar lawsuit on Michael using the homeowner association lawyer, the association reserves and the millions in the Directors & Officers Insurance policy the owners pay for to protect the board members performing their duties as board members.

• John R. MacDowell of Fiore, Racobs, Powers now claims Doyle now owes him $550,000. in legal fees.

• Homeowner association lawyers have been pocketing hundreds of millions from homeoewner association reserves and insurance policies and the home equity of homeeowners as "legal fees"

Recent Reports of Fraud , Abuse of Power , Misappropriations , Courtroom Injustice- San Clemente - California

1. Forester Ranch Homeowners Association -Homeowner Association lawyer -Fiore, Racobs, Powers
2. Misty Ridge Homeowners Association- Homeowner Association lawyer - Stanley Feldsott - Feldsott Lee & Feinberg
3. Coast Community Homeowners Association- Homeowner Association lawyer - Daniel Norberg
4. Palacio del Mar Homeowners Association Homeowner Association lawyer - Peters & Freedman
5. Cypress Cove Homeowners Association - Homeowner Association lawyer -Fiore, Racobs, Powers

Source: AHRC News Services


ON NOVEMBER 28, 2005 MICHAEL DOYLE WROTE:

Dear AHRC:

I am writing this letter to you so that you might better understand the lawsuit between my homeowner's association and me. I need your help to make the public aware that we need better laws that protect property owners, that live in homeowners associations, with a Board of Directors that acts wrongfully.

I purchased an empty lot in San Clemente, California, to build my home on. The City of San Clemente required me to do extensive underground repairs because my lot was unstable due to underground organic materials that were not removed by the previous developer.

I was sued by my homeowners association when I graded the lot. I acquired the proper grading permits from the City of San Clemente. I believed that I was deemed approved according to my association's CC&R's and those of the Master Association.

There were 20 individual depositions taken, some taking several days. The association won in superior court. The association was awarded over $400,000. in attorney fees.

I believe the whole truth did not come out in the trial, the court did not give a factual or legal basis for its statement of decision on several issues introduced at trial, and therefore justice was not served.

I believe that I am a victim of a crime. The case has been appealed.

SEE: Judge Derek Hunt Awards $400,000 To Homerowner Association Lawyers -
Another Homeowner feels he is unjustly robbed in an Orange County Courtroom

ON AUGUST 30, 2005, MICHAEL DOYLE WROTE:

Dear AHRC:

I would like to share the current status of my lawsuit and new developments in my endeavor to achieve some kind of development on my lot in San Clemente, California.

Although I have tried to come to some settlement with my association's board of directors, the attempts have not been fruitful. The majority of the Architectural Control Committee and the majority of my board of directors is made up of; my next door neighbor, his son-in-law, and their paid employee.

The "paid employee" that I refer to is also the president of the association, is an un-licensed contractor, graded his own lot without a permit, and is assisting as the "builder" of the "son-in-law's" house that is located on the other side of my neighbor. I should also note that the son-in-law started grading his lot just days after the judgment against me was entered. The grading was done very similar to mine including the importing of soils, more than double the soils movement, and the redesign of the building pad at a higher elevation to maximize views.

With that being said, let me now bring you up to date where we are today.

I have submitted new architectural plans for a single story home that meet my neighbor's alleged height requirement. Now, I cannot get an architectural review. This association ignores the new laws that went into effect this year that allow anyone to present their architectural plans at a board meeting and require an expeditious review of architectural plans. Instead, the board insists that any discussions to do with architectural submittals on my lot must be done in "executive session" and additionally they required me to sign a "confidentiality" agreement before they would even listen to me or look at the architectural plans.

Needless to say, they never give an architectural review of my submittal. They simply state that they do not have to review any plans until the judgment has been followed. (The judgment requires me to re-grade the lot to its original contours because I did not get permission from the architectural committee to do the grading in the first place.) It is my belief that my appeal has stayed the judgment and new plans should be reviewed by the architectural committee. The grade or structure should be reviewed and commented on. If I cannot get a review then how can I ever get anything approved? Can a bad board of directors in a common interest development keep someone (like me) from developing their land indefinitely? At this time, this board has done just that!

Now you can see a new picture developing. OR is it the old picture?: "The next door neighbor does not want a house built next door, period." He has stacked the deck with family and employee relationships on both the Architectural Control Committee and the board of directors.

Recently the association has sent us a letter demanding ADR because of the (I guess) "nuisance" by the submission of architectural applications on the lot. It is now our position that my architectural plans for a single story home are "deemed approved" by the CC&R's. There have been 3 applications for architectural review, the last by my daughter who is now the title holder of the property, for a single story house on the lot. All the applications have run their course of time without a review of the architectural plans.

The ADR is scheduled at JAMS with the Judge James Smith (retired). on September 7, 2005. The association will only have mediation, thus there will be no record of our discussions nor will there be any written opinion by the Judge. (I might add that I requested a binding arbitration ADR back in July 2005. The association insisted on mediation. At the July 2005 mediation, nothing was resolved at JAMS with Judge James Smith (ret.) although I believe he got the picture and did his best to resolve the matter.)

As for my appeal, case No. G034081, the oral argument is scheduled for September 23, 2005 at 9:00 am in District 4, Division 3. I am very hopeful that the law will be correctly applied to my case and the Court of Appeal will rule in my favor. It was very recently (May 2005) that the Court of Appeal, Second District, Division 7, California, (Case No. B167590. Cited as: 28 Cal.Rptr.3d 592) stated that restrictive covenants should be strictly construed against enforcement and in favor of the free use of land. The potential significance of this case to my appeal is that at least one appellate court is still stating in 2005, and after the enactment of Civil Code Section 1370, that restrictive covenants should be strictly construed against enforcement and in favor of the free use of land.

It seems that when there is a very good argument that the covenant does not state exactly what the "association" wants it to state, then CC1370 is raised because you can "imagine" their side if you construe anything loosely enough. If this was true for use restrictions and architectural guidelines, then why have a contract? It would be much easier to state: "For anything you want to do on your property you have to get permission from the board of directors and they can be subjective and discriminatory." Furthermore, CC1370 does not state which side (the association vs. the member) can use the loose construction which applies to only to the "operation" of the CID. I do not believe this statute says anything about applying it to use restrictions or architectural guidelines.

In conclusion, I am still very unhappy with the result of my trail in superior court. I believe the law was not properly applied to my case. Witnesses for the association did not tell the truth during testimony at trial and thus the facts are distorted. The association's board continues to breech its covenants and ignore the laws.

I have tried to settle my matter with an open mind and design of a new single story home that would meet the purported height requirements. I cannot get an architectural review of any new plans on the lot. At this point it seems that my appeal is inevitable. The future use of my property lies in the hands of the appellate panel next month. I hope for justice that will allow me the use of my land as stated in my association's governing documents.

As far at the California Law Rrevision Commission is concerned, I have sent another letter to Mr. Herbert regarding Study H-855 and the committee's attempt to initiate laws that will provide clarification of the law for California citizens living in CID's. It sure looks like there will be new laws around the corner and I will continue to give my comments.

SB 853 (Kehoe) may have helped me because I graded my lot after I discovered that the soils were unsafe. The City of San Clemente insisted on the grading before any house could be constructed on my lot. Although, it's not law yet and I doubt is it will be effective in the past, this law will help many homeowners in the future. Other bills that pertain to CID's for this year include SB 137, SB 551, SB 304, SB 186, SB 61, and AB 619. My last letter to Brian Hebert, at the CLRC, was on July 19, 2005.

I will continue my support of California laws that will assist the homeowner living in a CID. Not only does their need to be clarification for the members and their board of directors who live in CID's, there also needs to be clear direction given by our legislature to the Court(s) that members in a CID must be treated fairly and must be given due process according their association's governing documents and the law.

Thank you for your interest in my case.

I remain the optimist and,

Yours very truly,

Michael Doyle.
San Clemente, California