Judge: Matthew C. Braner, Case: 37-2021-00050363-CU-WM-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Writ of Mandate Motion Hearing (Civil) 37-2021-00050363-CU-WM-CTL HARTER VS RANCHO RIOS HOMEOWNERS ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Respondent Rancho Rios Homeowners Association's motion for an order requiring Petitioner David Harter to post security or for an order dismissing the litigation is GRANTED.

Respondent brings this motion under Code of Civil Procedure section 391.1, subdivision (a), which states: In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.

It is undisputed that Petitioner has been designated a vexatious litigant and needed leave of court in order to file his petition. (ROA #7.) After review of the evidence, the court concludes Petitioner also does not have a reasonable probability of prevailing on his petition seeking to compel production of documents from Respondent.

The crux of Petitioner's petition is that he requested documents from Respondent pursuant to Civil Code section 5200 et seq., and Respondent 'unreasonably withheld access to the association's records.' (Civ.

Code, § 5235, subd. (a).) Petitioner argues Respondent unreasonably withheld the documents by ignoring his requests, which he sent to each of Respondent's five directors. (Petition, ¶ 3.) However, to the extent Respondent must have received written notice of a request before becoming obligated to act, 'the document shall be delivered to the person designated in the annual policy statement, prepared pursuant to Section 5310, to receive documents on behalf of the association.' (Civ. Code, § 4035, subd.

(a).) Respondent presents evidence that at the time Petitioner sent the written requests, the person designated in the annual policy statement to receive such requests was Jack Kuta, and Petitioner failed to send the request to Mr. Kuta. (Kuta Dec., Ex. A [annual policy statement designating Mr. Kuta as person to receive documents].) Even so, Mr. Kuta obtained a copy of the request and responded to Petitioner (Kuta Dec., ¶ 4, Ex. B.) Quite obviously, Mr. Kuta did not refuse to make available or to produce the requested records.

The court is also persuaded that even if Petitioner's claim had merit, he is pursuing it in the wrong court.

A cause of action under Civil Code section 5235, subdivision (a), should be brought in a court of limited or unlimited jurisdiction (instead of small claims court) only if the amount reasonably sought exceeds the Calendar No.: Event ID:  TENTATIVE RULINGS

2952702  14 CASE NUMBER: CASE TITLE:  HARTER VS RANCHO RIOS HOMEOWNERS ASSOCIATION  37-2021-00050363-CU-WM-CTL jurisdiction of the small claims court. (Civ. Code, § 5235, subd. (b).) As Petitioner is not represented by counsel, he cannot seek reasonable attorney fees, meaning his action is limited to 'a civil penalty of up to five hundred dollars ($500) for the denial of each separate written request.' (Civ. Code, § 5235, subd.

(a).) Even were the court to treat each of the four document requests in Petitioner's letter as separate written requests (as opposed to treating the letter itself as a single request), the maximum civil penalty Petitioner could obtain, plus reasonable costs, is almost certainly less than the $10,000 jurisdictional limit for small claims court.

The court is inclined to require that Petitioner post a bond of $150,000, as requested by Respondent, but will hear from Petitioner on this issue.

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