Homeowner association manager is accused of fabricating evidence

Question: Our manager refuses owner requests for documents, causing our association to be sued several times a year. Each time she comes to court as a defendant, she brings her so-called evidence and answers, "Your honor, see Exhibit X." She overloads on exhibits, most of which are contrived for the purpose of that hearing. Her main strategy includes putting on big exhibit head notes supposedly explaining what each exhibit consists of, but when the exhibits are scrutinized and read, they have little or nothing to do with what is head-noted. The court accepts the exhibits based on the head notes. For example, she head-noted "County-issued permit," but in actuality it was only an application for the permit that was never filed. In our cases, judges aren't reading the exhibits, just the head notes. If judges bothered to read the exhibits, they would see the exhibits were irrelevant to the case and/or suspiciously fabricated for the purpose of that hearing. The judges inevitably rule for the manager, as homeowner association representative, and against the plaintiff-homeowners. She brags how she successfully pulls off this scam in court. She credits her former management company boss, who showed her how to do this. How do we get judges to read beyond her exhibit head notes? How can owners do better in small-claims actions?

Answer: Fabricating and presenting false evidence in court is illegal and has criminal repercussions. (Penal Code sections 132 and 134)

Litigants and attorneys alike complain that judges do not spend enough time scrutinizing evidence before the court, or that they spend too much time on some documents and not enough on others. For better or worse, justice in our system is dispensed by an individual or a jury — and all the imperfections that come with each.

Parties in small-claims court have the right to request that a judge hear their case rather than a commissioner, and it is usually in your best interest to request a judge. Small-claims courts may or may not record the trial proceedings, but nothing prevents you from hiring a court reporter. Transcripts are a valuable tool. If there's an appeal, hanky-panky or alleged perjury (Penal Code section 118), the transcript can be used to point out illegal discrepancies in testimony. A transcript may also be helpful in presenting your case to the homeowner association board as to why the manager should be replaced, regardless of the outcome of your case.

In court, your most important role is to make the judge's job as easy as possible. You have lived with your case; the judge has not. You've seen how effective large head notes and persuasive guidance can be, so employ the same methods.

The defendant must provide copies of her evidence to the plaintiff and the court. If you did not receive copies before the court hearing, ask for them immediately. Depending on the complexity and volume of exhibits, request a short recess to review them or a hearing continuance.

Be prepared to substantiate your claims and firmly point out errors in the manager's, stating respectfully that "perhaps your honor overlooked...." Documents contradicting what was presented to the court should be produced at this time.

In court, if the manager says or presents something that is false, nothing prevents the plaintiff titleholder from objecting. This is achieved by politely speaking out and stating, "Your honor, I object," and explaining why. Although you cannot have an attorney represent you at the initial small-claims court hearing, consider hiring one to help you organize, frame your arguments and be present in the audience. Have like-minded owners bring their own cases against the manager and testify as witnesses in your case.

Being thoroughly prepared and organized means increasing your chances of success at a hearing by properly documenting your position before the case is ever filed. Owners must keep meticulous files from the day they closed escrow to the time that they sell their home. Always record the date a document is provided to you and keep all envelopes regardless of whether they are postmarked or signed for.

The key is to make consistent, systematic written demands for documents to the board. That means avoiding gaps between demands regardless of whether you have a need for those documents at that time. Regular demands serve to lock in the time frame for documents that have been received.

If documents are altered after publication, it is proved by supplying the demand letter to the court and the document copy that was provided to satisfy that demand. Under Civil Code section 5110(d), any report made by an election inspector is prima facie evidence of the facts stated in the report, and under Corporations Code section 7215, association board meeting minutes once signed by the secretary are prima facie. Prima facie means courts accept these documents at face value.

A manager bragging about scamming the court or refusing owner requests is a liability to the association and should be terminated.

Zachary Levine, 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.

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