Case No 07F-H067006-BFS

Complaint:
1. discrimination by landscaping
2. threats of additional assessments

Source of Law:
Declaration; by-laws; case law

Discussion:

Holding:

Additional Remarks:
In this dispute over the height and size of a homeowner’s fence/gate, the HOA attorney found it necessary to submit a 10-page legal memorandum on the Friday before the Monday Hearing. Legal memoranda present arguments and contain biased points of view, with or without supporting authority. They are not evidence. This, in my opinion, was a CAI HOA attorney playing hardball and attempting to apply their legalese to thwart homeowner justice.

OAH has no procedures or rules governing the submission of legal memoranda, which are arguments on some motion before the judge (or an appellate court argument), except that a brief may be filed as part of the docket (record), R2-19-108, or as a supplement to closing arguments, R2-19-116(G) and (H), and as a pre-conference agreement, R2-19-112. (As a guide, when memoranda are submitted with a motion or appellate procedure, the opposing party gets 10 - 20 days to respond -- see Rules of Civil Proc).

Accepting the current OAH rules that a memorandum may be accepted, these rules violate the impartiality doctrine of the courts and impartial adjudication process of OAH. They do not inform the parties that written arguments are permissible in addition to the evidentiary hearing process. In short, knowledgeable attorneys understand that a memorandum is a legal argument, but this is not made clear to the public who is told that a lawyer is not necessary, and any references to submitting memorandum as part of the adjudication is avoided on the OAH materials provided to the public on its website. This silence seems to reflect an attitude, that, well. the average person doesn't understand legal memos anyway, so why bother to inform him.

Petitioner requested a 20-day continuance to respond to the HOA attorney memorandum, which he described as “ambush tactics”. Koepke responded that, all that they were doing was “advising the court about the substantive issues of law on the topics before it”. Without explanation, the ALJ denied the motion for continuance. Then, the ALJ asked petitioner, “Did you have a chance to look at it? “Yes”, replied petitioner. “Well, then you are ahead of me, I just got it this morning and haven’t had a chance to look at it. I will look at it later.”

Petitioner has not had a chance to respond, as a matter of fairness and court impartiality, so the ALJ would see both positions. As it stands, the ALJ violated its impartiality by accepting the memorandum, by not granting a continuance, nor even advising the Petitioner that he could submit a memorandum as a supplement to the closing arguments, as per R2-19-108.

HOA attorney is Penny Koepke at Ekmark.