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HOA Lawyer Tricks

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NOTE: The following post was originally scheduled to be published at a future date. Due to Ward’s passing, it has been published immediately for viewing until hosting for this site expires. 
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Guest blog by Donie Vanitzian (LA Times columnist)

QUESTION:  I’m representing myself in a contentious litigation with my homeowners association.  The board has a powerful, well-known law firm representing them.  They know all the dirty legal procedural tricks to use against me and are a machine burying me in paper — I can’t keep up.  Last week they held yet another ex parte hearing with the judge.  I was NOT served or given any notice of that hearing last week and therefore did not appear.

The association’s law firm told the judge that they called me several times and that they also called an attorney I employed over a decade ago who handled my divorce, an unrelated matter to the present litigation.  That divorce lawyer no longer represents me on any matters.  I learned that the association lawyers asked my old divorce attorney to notify me of this ex parte hearing saying that that communication constituted due notice to ME.  On speaking with the divorce attorney he said he got the call late and was unable to contact me until the day after the ex parte hearing had occurred.  Association lawyers also have a process server who verifies that notice of the ex parte hearing was “timely” served on me when in fact they DID NOT serve me at all!  What options do I have?

ANSWER:  Because you’re up against attorneys who have considerable experience and resources and do this all day, representing yourself means this becomes a full-time job.  More often than not, in complex and protracted litigation, you need an attorney to represent your interests.  Or, in the alternative, try looking for an attorney willing to assist with research and strategy without filing an appearance in your case.  In addition to their expertise in the subject matter you require, the attorney(s) must know procedural law.   

Success in litigation is based on legal knowledge, resources, organization and a nose for honing-in on strategy.  Deadlines can entail an often complicated mix of filing formulas for compliance and these deadlines arise frequently, necessitating quick and timely responses.  Even WITH an attorney:

•  You are responsible for monitoring what the other side is doing and filing. 

•  You must understand how electronic filing works and monitor closely ALL electronic filings pertinent to your litigation.  If filings are ONLY done electronically in your jurisdiction, make a motion to the court that you ALSO want to receive paper copies of all filings with proof of service for those filings to an address you provide.  There’s just too much hanky-panky associated with electronic filing and manipulation of service dates.  Also, your attorney may be a sole practitioner one-person office with too many clients making it is easy to miss a filing.

•  You MUST regularly check the court’s online docket but ALSO go to the courthouse and physically review court files at the filing window.  Some filings take more than a week to show up online, a risk you can’t take.

•  You must know all applicable deadlines for your case and how to calendar them.  You have to keep your own up-to-date calendar showing what items have been filed and on what dates — AND — what needs to be filed and the deadline for those filings.

•  You need to calendar every hearing and appearance date whether you appear or not BUT be prepared to appear on your own.  It does happen that attorneys don’t show up for a variety of reasons.  It is better to show up and tell the judge you want to preserve your rights and ask for a continuance for the purpose of having an attorney present — this may help you avoid sanctions for a failure to appear.  It also may prevent the other side bending the judge’s ear as a captive audience to their side of the case.

•  You cannot be afraid to remind your attorney of an upcoming filing date and ask to see a copy of the item that will be filed.  People make mistakes.  Two sets of eyes are better than one.  Sometimes proof-reading doesn’t always happen.

•  You should have hard copies of ALL filed briefs/documents that your attorney has.  If your attorney won’t provide these, you will have to go to the courthouse and get the copies on your own.

•  You can’t risk not having a court reporter present to document and transcribe what goes on in that courtroom.  Not all courtrooms provide court reporters or recordings for transcripts.  Some of the best evidence you may get, may be in that transcript!  Without that transcript it’s a he-said she-said situation and some courts won’t let you file an Appeal without a transcript.  A court reporter should be ordered in advance – and – that reporter should be at that scheduled appearance or hearing EVEN IF you and/or your attorney do not show up!  It is shocking to read a transcript that lays bare the informal banter that occurred between the judge and opposing counsel BEFORE you got there.


Just because a process server says you were served, doesn’t mean you were.  The same goes for statements made by the other party’s attorneys.  If a judge makes a ruling at an ex parte hearing based on false information, you can ask the judge to vacate that ruling and/or even seek sanctions from the individuals that lied to the court.  However, if a ruling has been made, you need to get started immediately.  There are strict deadlines for granting the type of relief you need to fight these improper actions.  Reserving hearing dates and filing motions either to vacate a ruling or reconsider a ruling are a good place to start.

Compile as much evidence as possible showing you were not given actual notice.  Obtain a declaration from your previous attorney stating your representation had ended before the association’s purported notice was served.  Then show you were not where a process server claims you were.  California Code of Civil Procedure Section 128.7 allows you to request sanctions against an attorney who files a motion or makes a request for an improper purpose or based on knowingly false information.  A process server that prepares or signs false proofs of service is subject to sanctions and liability for abuse of process.  If this process server is registered they may have their registration either suspended or revoked in connection with these proceedings.

Once an attorney has completed the task he or she was hired for, put them on notice they no longer represent you and file a Substitution of Attorney with the court.  That way, there’s no question that he or she cannot accept service on your behalf.  You’re always free to re-hire that attorney, but at least you prevent situations like this from occurring.  The key is to act with lightening speed.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.  A prior version of this article can be found at latimes.com.

Vanitzian On Pro-Bono

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guest blog, permission by Donie Vanitzian (LA Times Columnist)

QUESTION:  For more than two years, I’ve experienced nothing but problems with my homeowner association board and management. They are uncooperative and obstructive. After eliminating all my administrative remedies, I now believe the only way to fix these serious problems is to sue them.

I’ve interviewed three attorneys, but each is requiring a retainer of at least $20,000. Realizing I don’t have enough money to sue the board and the association, I asked each attorney to take the case on a contingency basis. No attorney would agree to that.

I then asked if they would represent me “pro bono” and was told I don’t fall under that category. Why won’t an attorney take my case pro bono or on contingency?

ANSWER: Pro bono help on behalf of individuals is typically for disadvantaged groups, those who are poor, disabled or elderly. The cases also tend to involve problems that have common patterns of fact that lawyers with adequate resources can handle efficiently.

Because owning real property generally implies one is not poor, homeowner association cases typically don’t fit such a blueprint. And association-related problems tend to have unique issues and facts that require more time and money than pro bono organizations are prepared to invest.

Contingency cases are a familiar phrase to the public because of personal-injury cases stemming from a car accident. Such cases are often referred to as “pure contingencies” because the lawyer pays everything, in exchange for getting up to 45% of any settlement or judgment proceeds.

Lawyers decide to take personal injury cases provided liability is reasonably clear and the opposition is an insurer or other solvent party who can pay. Because there is an extensive body of data known to lawyers and insurers regarding the range of compensation afforded most kinds of injuries, these factors simplify the handling of personal injury cases and make them more attractive.

As you can see, several levels of case evaluation are undertaken before a lawyer takes a case on contingency because there must be a reasonable likelihood of success in order to justify risking months or years of work without compensation.

When an owner sues in homeowner association-related cases, the advantages inherent in many personal-injury cases are rarely present. Homeowner versus association cases — like business contract breaches, divorce and failed partnerships — are usually very complex.

Predictably, these cases involve substantial paper documents, computer records and multiple people acting over a significant period of time. Moreover, the law defining fault and providing damages may be uncertain or evolving.

The lawyer’s evaluation of time and expense has to account for taking multiple depositions, potential discovery battles to get records and documents, possibly poor record-keeping by the client, changes in the law and unpredictable judges and juries. Then there are boards that litigate and defend to the extreme even if it makes no economic sense — just to prove a point with a particular case and send a message to other owners thinking about suing.

Whether a homeowner is suing the association or the board itself, both are indemnified so an owner is effectively suing the association’s insurance company. Though that would seem attractive to an attorney seeking ample resources to pay a judgment, it also can unduly protract the litigation.

Finally, a client could render all the lawyer’s efforts for naught by failing to cooperate, or by abandoning the case because it’s too much work or stress. Many prospective plaintiffs fail to consider how much of their own time will go into a case, even with an attorney.

The lawyer must consider all these variables and make a cost-benefit analysis in deciding whether to risk taking a contingency case. Ultimately, the decision comes down to the likelihood of success in obtaining — and collecting — on a favorable settlement or court award versus the hours likely to be expended.

Ultimately, even the best cases have at most a 70% to 80% chance of success. And even if a case is successful, the potential award must be great enough for a lawyer to make it worthwhile, something very difficult to determine. Unsurprisingly, few lawyers take on business or homeowner cases contingently.

Occasionally some cases are handled as partial contingencies, which allows attorneys to reduce legal fees. Still, clients must pay some expenses and a substantial retainer because final costs typically total in the thousands of dollars.

In the end, what might at first seem like a “good case” to a lay person, when carefully scrutinized, rarely is. The law may not provide enough leverage to adequately right the wrong at issue, at least not monetarily.

The unhappy reality of modern life is that legal machinery doesn’t exist to compensate people for every unkind, improper or evil deed done to them in life, let alone in a homeowners association.

Michael Krieger, a Los Angeles lawyer practicing business contract, technology and intellectual property law, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com

HOA Battle in Britain

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I thought Brits were supposed to be more polite than Americans. At least the Brits think they are. But Homeowner Associations are endemic around the world. And nasty neighbors can be found anywhere.

But here’s a great nomination for the Neighbors from Hell category from LA Times columnist Donie Vanitzian. It involves a neighborhood battle that’s been going on for forty years in a borough in Tyne and Wear in the northeast corner of England. 89 year old John Bushell has been jailed and fined multiple times over the years because of the unbelievable harassment of his neighbors. Bushell spends a lot of time perfecting his house and garden. But he thinks his neighbors don’t keep up their homes to his standards.

Bushell has diverted his gutters to flood his neighbors’ yards. He has painted the walls facing his neighbors black. He has threatened multiple times to shoot his neighbors and burn down their homes.

Forty years this has been going on! Crazy.

(link to Daily Mail column on the Bushell madness)