QHC-2017-06 Litigation Update -...

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Reply to: 2566 Overland Ave., Suite 730 Los Angeles, CA 90064 (800) 464-2817

www.AdamsStirling.com www.Davis-Stirling.com www.CommercialCID.com

June 29, 2017

RE: LITIGATION UPDATE Evan Chemers vs. Quail Hill Community Association, et al. Orange County Superior Court Case No. 30-2016-00881609-CU-CO-CJC To Whom It May Concern:

The following is an update on the lawsuit filed by Evan Chemers against Quail Hill Community Association (“Association”);; former directors of the Association’s board of directors – Neema Aghamohammadi and Himanshu Surti; and current directors – Albert Ng, Amy Wang Liao, Joe Craciun, and Bob Dougherty. The Association and the former and current director defendants are referred to as “the Defendants.”

JUDGMENT FOR ASSOCIATION AND DIRECTORS AS TO 1ST, 3RD, 5TH, 6TH, 7TH, and 8TH CAUSES OF ACTION

On the June 12, 2017, judgment was entered in favor of the Defendants and against Chemers as to the 1st, 3rd, 5th, 6th, 7th, and 8th causes of action following an anti-SLAPP special motion to strike. Thus, the Court dismissed these causes of action, and awarded fees and costs to the Defendants. Only the 2nd and 4th causes of action will move forward. We believe the remaining causes of action are equally without merit and we will continue to vigorously defend these baseless claims.

A copy of the Court’s June 12, 2017, ruling is enclosed.

Below is a general summary of each cause of action. If you have further questions you may obtain and review the full public court records at the courthouse or through the court’s website.

ALLEGATIONS

1st Cause of Action – Breach of Governing Documents

Chemers alleges the Association violated the CC&Rs concerning his request to inspect association records, forming executive committees, and removing him from the board, among other things.

June 29, 2017


2nd Cause of Action – Violation of Opening Meeting Act (Civil Code § 4900 et seq.)

Chemers alleges the Association violated the Open Meeting Act of the Davis-Stirling by failing to include on the agenda of a July 11, 2016, board meeting an item to remove him from all committees.

3rd Cause of Action – Violation of Civil Code § 5850 et seq.

Chemers alleges the Association improperly disciplined him without proper notice by creating executive committees to investigate his alleged conduct, reprimanding him, disciplining him by removing him from the board without proper notice, investigating his residency, and removing him from the board.

4th Cause of Action – Violation of Civil Code § 8330 et seq.

Chemers alleges Association improperly denied him a request to inspect records when he was a director.

5th Cause of Action – Breach of Fiduciary Duty; Negligence

Chemers alleges the Defendants breached their fiduciaries duties and were negligent when forming executive committees in December 2015 and June 2016, posting comments on social media, reprimanding him without proper notice, and removing him from the board.

6th Cause of Action – Negligence

Chemers alleges the Defendants were negligent in creating the aforementioned executive committees, posting notices online, reprimanding him, and removing him from the board.

7th Cause of Action – Declaratory Relief (Residency Requirement)

Chemers asks the court to find he was improperly removed from the board for not being a resident and the Association did not apply the same standards to other directors.

8th Cause of Action – Declaratory Relief (Bylaws Term Limit)

Chemers asks the court to find ineffective the Bylaw amendment regarding director term limits approved by the members at the July 2017 annual meeting.

June 29, 2017


Please keep in mind the matter is pending and neither the Board nor my office can provide any further information than the foregoing.

Sincerely,

Cang N. Le, Esq. Managing Partner ADAMS | STIRLING A Professional Law Corporation Enclosure – June 12, 2017 Judgment on Court’s Order Granting Defendants’ Anti-SLAPP Motion

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MARK S. POSARD (SBN: 208790) SARAH E. CHRISTENSON (SBN: 291548) GORDON & REES LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 moosard(eordonrees.com schristensonenordonrees.com

Attorneys for Defendants, QUAIL HILL COMMUNITY ASSOCIATION, NEEMA AGHAMOHAMMADI, ALBERT NG; HIMANSHU SURTI, AMY WANG LIAO, BOB DOUGHERTY AND JOE CACIUN

SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE

CENTRAL JUSTICE CENTER

JUN 1 2 2017 DAVID 11. YAMASAKI. Clerk of the Court

BY; ,DEPUTY

SUPERIOR COURT OF CALIFORNIA - COUNTY OF ORANGE

ELECTRONICALLY RECEIVED Superior Court ot Wrenn.

Gaiety of Orange 05:1112017 *O358 04 NA ClrkoftO upenor Cent

By Seine telarDepily Clerk FILED

QUAIL HILL COMMUNITY ASSOCIATION, a non-profit mutual benefit corporation; NEEMA AGHAMOHAMMADI, an individual; ALBERT NO, an individual; AMY WANG LIAO, an individual; BOB DOUGHERTY, an individual; and DOES 1-100, inclusive,

Defendants.

On May 1,2017, the above-captioned Court granted the motion of Defendants QUAIL

HILL COMMUNITY ASSOCIATION, NEEMA AGHAMOHAMMADI, ALBERT NO,

HIMANSHU SURTI, AMY WANG LIAO, BOB DOUGHERTY and JOE CACIUN

(hereinafter referred to as "Defendants") and issued an order striking Plaintiff EVAN

CHEMERS' (hereinafter referred to as "Plaintiff') First, Third, Fifth, Sixth, Seventh, and Eighth

Causes of Action, and any prayers for relief on said Causes of Action. The Court did so pursuant

its order granting Defendants motion under California Code of Civil Procedure ("CCP") section

425.16. A true and accurate copy of the Court's May 11,2017 Order is attached hereto as Exhibit

"1" and incorporated herein by reference. In accordance with that order:

-1- I Thgegaeal JUDGMENT ON COURT'S ORDER GRANTING ANTI-SLAPP MOTION

EVAN CHEMERS, an individual,

Plaintiff,

VS.

CASE NO. 30-2016-00881609-CU-CO-CJC

Wel JUDGMENT ON COURT'S ORDER GRANTING DEFENDANTS' ANTI-SLAPP MOTION

Judge: Honorable Gregory H. Lewis Dept: C26

Filed: October 11, 2017 Trial: Not Set

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HON REGORY H. LEWIS JUD E OF THE SUPERIOR COURT

IT IS ORDERED, ADJUDGED AND DECREED that a judgment of dismissal with

prejudice is entered on behalf of Defendants QUAIL HILL COMMUNITY ASSOCIATION,

NEEMA AGHAMOHAMMADI, ALBERT NG, HIMANSHU SURTI, AMY WANG LIAO,

BOB DOUdHERTY and JOE CACIUN and against EVAN CHEMERS on the First, Third,

Fifth, Sixth, Seventh, and Eighth Causes of Action. EVAN CHEMERS takes nothing by his

Complaint from Defendants on the First, Third, Fifth, Sixth, Seventh, and Eighth Causes of

Action.

Defendants are awarded statutory attorneys' f s and costs of suit from EVAN

CHEMERS in an amount to be determined by this cou upon Defendants' application for same

to this court, at which time this Judgment will be amen d Nunc Pro Tune to set forth those fees

and costs.

Dated: R- 11

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-2- IlWillitSEM JUDGMENT ON COURT'S ORDER GRANTING ANTE-SLAP? MOTION

EXHIBIT 1

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE

CENTRAL JUSTICE CENTER MINUTE ORDER

DATE: 05/11/2017 TIME: 04:16:00 PM JUDICIAL OFFICER PRESIDING: Gregory H. Lewis CLERK: Rebecca Z Chumpitazi REPORTER/ERM: BAILIFF/COURT ATTENDANT: Trinity Palabrica

CASE NO: 30-2016-008131609-CU-CO-CJC CASE INIT.DATE: 10/11/2016 CASE TITLE: Chemers vs. Quail Hill Community Association CASE CATEGORY: Civil - Unlimited CASE TYPE: Contract - Other

EVENT ID/DOCUMENT ID: 72588129 EVENT TYPE: Nunc Pro Tunc Minutes

APPEARANCES

It appearing to the Court that through error or inadvertence, the minute order of this Court dated 05/10/17, does not properly reflect the order of the Court. Said minute order is ordered corrected Nunc Pro Tunc as of 05/10/17, as indicated below:

On May 1, 20171 this Anti-SLAPP Motion came regularly on calendar in C26. James K. Ulwelling, Esq. of Ulwelling Siddiqui LLP appeared for Plaintiff Evan Chemers. Mark S. Posard, Esq. of Gordon & Rees LLP appeared for Defendants, Quail Hill Community Association ("Quail Hill") and the members of the Board of Directors, Neema Aghamohammadi, Albert Ng, Himanshu Suit, Bob Dougherty, and Joe Craciun (Doe 1). Defendant Amy Wang Liao was NOT a moving party on the notice of motion. After the arguments of counsel, the court took the Anti-SLAPP Motion under submission.

Clerk to give notice.

DATE: 05/11/2017 DEPT: C26

MINUTE ORDER Page 1 Calendar No.

DEPT: C26

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE

CENTRAL JUSTICE CENTER MINUTE ORDER

DATE: 05/10/2017 TIME: 10:03:00 AM DEPT: C26 JUDICIAL OFFICER PRESIDING: Gregory H. Lewis CLERK: Rebecca Z Chumpitazi REPORTER/ERM: BAILIFF/COURT ATTENDANT: Trinity Palabrica

CASE NO: 30-2016-00881609-CU-CO-CJC CASE INIT.DATE: 10/11/2016 CASE TITLE: Chemers vs. Quail Hill Community Association CASE CATEGORY: Civil - Unlimited CASE TYPE: Contract - Other

EVENT ID/DOCUMENT ID: 72586484 EVENT TYPE: Under Submission Ruling

APPEARANCES

There are no appearances by any party.

The Court, having taken the above-entitled matter under submission on 05/01/17 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows:

On May 1,2017, this Anti-SLAPP Motion came regularly on calendar in C26. James K. Ulwelling, Esq. of Ulwelling Siddiqui LLP appeared for Plaintiff Evan Chemers. Mark S. Posard, Esq. of Gordon & Rees LLP appeared for Defendants, Quail Hill Community Association ("Quail Hill") and the members of the Board of Directors, Neema Aghamohammadi, Albert Ng, Himanshu Surti, Bob Dougherty, and Joe Craciun (Doe 1). Defendant Amy Wang Liao was a moving party on the notice of motion. After the arguments of counsel, the court took the Anti-SLAPP Motion under submission.

Ruling: Upon further review, the court GRANTS the Anti-SLAPP Motion as to the First, Third, Fifth, Sixth, Seventh and Eighth Causes of Actions. The Anti-SLAPP Motion is DENIED as to the Second and Fourth Causes of Actions.

Special Motion to Strike: "At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiffs showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of

DATE: 05/10/2017 MINUTE ORDER

Page 1 DEPT: C26 Calendar No.

CASE TITLE: Chemers vs. Quail Hill Community CASE NO: 30-2016-00881609-CU-CO-CJC Association protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." Barn! v. Schnitt (2016) 1 Ca1.51n 376, 396.

Protected Activity: Defendants satisfied the first prong to establish his Anti-SLAPP motion. Civ. Proc. Code § 425.16 (e) defined protected activity as including "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law. ..1.

Initially, the court should observe that speech at a homeowners' association meeting is considered a quasi- governmental activity. Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475. "A 'public forum' is traditionally defined as a place that is open to the public where information is freely exchanged. . . . The Board meetings fit into this definition. . . Further, the Board meetings served a function similar to that of a governmental body. As our Supreme Court has recognized, owners of planned development units 'comprise a little democratic subsociety " Id.

'"Public interest" within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, 'private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.' " Ruiz v. Harbor View Cmty. Ass'n (2006) 134 Cal. App. 4th 1456, 1468.

"[T]he acts of director defendants that are the 'principal thrust or gravamen' . . . of plaintiffs' complaint-as more precisely defined by plaintiffs on appeal-concerned matters of 'public interest' within the meaning of subdivision (e)(3) of section 425.16. Indeed, director defendants' decisionmaking process and debate in approving both the roofing project, which affected multiple buildings ... which management entity was responsible for the day-to-day operations of [the] community, impacted a broad segment, if not all, of. members." Lee v. Silveira (2016) 6 Cal. App. 5th 527, 540. (Emphasis original).

Second Prong: "If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." Bare! v. Schnitt, supra, 384. The Anti-SLAPP Motion challenged all eight causes of action. "To establish a probability of prevailing, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Soukup v. Law Offices of Herbert Ha& (2006) 39 Ca1.4th 260, 291.

Plaintiff submitted two declarations to opposing the Anti-SLAPP Motion. One was the declaration of James K. Ulwelling, Esq. concerning service. The other declaration was from Plaintiff Evan Chemers.

Privilege: "Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to 'the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions."... Thus, it has been established for well over a century that a communication is absolutely immune from any tort liability if it has 'some relation' to judicial proceedings." Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal. App. 4th 1, 5.

"The only exception to application of section 47(2) to tort suits has been for malicious prosecution actions." Si/berg v. Anderson (1990) 50 Ca1.3d 205, 216. Therefore, Plaintiff cannot prevail on the fifth cause of action for breach of fiduciary duty and the sixth cause of action for negligence.

First cause of action for breach of governing documents v, Quail Hill' "The elements for a breach of



CASE TITLE: Chemers vs. Quail Hill Community CASE NO: 30-2016-00881609-CU-CO-CJC Association contract claim are "the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant and damages." First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745. Plaintiff has not shown that he is likely to prevail on the merits of this claim because Plaintiff has not shown Defendants breached the CC&Rs.

Plaintiff did not show that his removal was improper. Plaintiff directs the court to Article V, Section 6 of the Bylaws and contends that the removal of a direction from the board requires a vote of Delegates representing a majority of the total voting power of the Master Association. Opposition, 10:6-9; Chemers Decl., Exhibit U, Article V, Section 6 (at its internal page 13). Plaintiff provides no evidence to show the Delegates did not so vote. Plaintiff also does not provide the definition of the terms "Delegates" or "Master Association."

Plaintiff further contends the removal was improper because the board improperly declared Plaintiff's seat vacant on the ground that he was no longer a resident. Opposition, 10:9-11. However, Plaintiff provides no evidence to show how the term "resident" is defined. Plaintiff relies on a residency requirement adopted at a board meeting held on November 25, 2013. Chemers Decl., Exhibit N (at its internal page 3-4). However, the documents required to show residency appears to only apply to new candidates. Id. Although Plaintiff provides evidence to show he can show documents to show residency if he was a new candidate, Plaintiff was already a director at the time and Plaintiff offers no evidence to show that he resided within the community at the time of his removal.

Plaintiff also contends that he was subjected to disciplinary action without proper notice or procedure, in violation of Article XI, Sections 2 and 3 of the Bylaws (and in violation of Civil Code section 5850, his third cause of action). Opposition, 11:15-18. Article XI, Section 1 of the Bylaws describes the disciplinary measures that may be taken: "(a) levying a Compliance Assessment as provided in the Master Declaration; (b) suspending or conditioning the right of said Member to use any Master Association Property recreational amenities; or (c) suspending the voting rights attributable to such Members Lot or Condominium." Plaintiff offers no evidence to show that such measures were taken against him. Plaintiff has not shown that his complained of conduct (creation of special Executive Committees, publications regarding Plaintiff, investigating Plaintiffs residency status, and removing Plaintiff from the Board) constitutes discipline which requires notice and hearing. Opposition, 12:21-27.

Although not listed in Plaintiffs opposition, Plaintiffs complaint also alleges Defendants breached the CC&Rs by creating two executive committees without proper notice or hearing, and by investigating his residency status. However, Plaintiff does not point to any section of the CC&Rs that show notice and hearing is required prior to the creation of an executive committee or that investigating his residency status violates the CC&Rs. [The allegations concerning assess to records are addressed in the fourth cause of action.]

Second cause of action for violation of Open Meeting Act (Civil Code section 4900, et seq.) v. Quail Hill: Plaintiff contends Quail Hill violated the Open Meeting Act by allowing a member to present a petition to add something to the ballot and by allowing Plaintiffs removal from all committees despite the actions not being included in the agendas for those respective meetings. Opposition, 11:28-12:13. The agenda for the March 24, 2016 meeting did not include amending the bylaws. Chemers Decl., Exhibit D, page 1. The petition to amend the bylaws was raised by a homeowner (not a director) during open forum. Id., at its internal page 2 of 6, lines 60-62. Civil Code section 4930(a) permits a member or resident who is not a director to speak on issues not on the agenda. The homeowner was not a director and as such, discussing the petition did not violate section 4930. In addition, openly identified the item to the members in attendance. Civ. Code § 4930(e); Chemers Decl., Exhibit D, (at its internal page 2, lines


Page 3 DEPT: C26

Calendar No.

CASE TITLE: Chemers vs. Quail Hill Community CASE NO: 30-2016-00881609-CU-CO-CJC Association 62-65).

Civil Code section 4930(d) permits the board to take action on any item of business not on the agenda if the majority of the Board determines an emergency situation exists or if immediate action is needed. Plaintiff contends there was no emergency but offers no evidence to support that contention. Plaintiffs evidence showed that the issue was time sensitive and needed to be addressed prior to the mailing date of the election materials. Chemers Decl., Exhibit D (at its internal page 2, lines 64-65). There is no evidence provided to show that the Board could have reasonably foreseen the homeowner's request.

Even if the Court does not find this to be an emergency situation, Plaintiffs evidence shows that there was a need to take immediate action and the action was approved by majority vote with only Plaintiff (of five directors) opposing. Civ. Code, § 4930(d) (2); Chemers Decl., Exhibit D (at its internal lines 64-75).

Because Plaintiff has not shown the petition was improperly discussed at the meeting or that the Board was not authorized to act upon the petition.

Plaintiff has shown he can prevail on the merits of this cause of action as it relates to the 6/11/2016 meeting. At this meeting, the Board moved Plaintiff from all committees. Plaintiffs removal from all committees was not included in the agenda. Defendants did not dispute this was improper or that Plaintiffs removal constituted an emergency situation or required immediate attention.

Defendants may contend this was necessary to prevent future litigation and the action is covered by the litigation privilege. Please note Defendants contend that the litigation privilege will overcome all of Plaintiffs causes of action. However, Defendants did not offer any evidence to show how removing Plaintiff from the committees falls under the litigation privilege. As such, Plaintiff has shown a likelihood of prevailing on the merits of this claim.

Third cause of action for violation of Civil Code section 5850 et seq. v. Quail Hill: Civil Code section 5850 requires notice to be provided to a member before disciplinary action may be considered or imposed. As discussed above, Plaintiff has not shown he was subjected to disciplinary action. As such, Plaintiff has not shown a probability of prevailing on the merits.

Fourth cause of action for violation of Civil Code section 8330 et seq.v. Quail Hill: Plaintiffs fourth cause of action is really for violation of Corporations Code section 8330 et seq. As discussed above, Plaintiff has shown sufficient evidence that he was denied access to the redacted legal invoices and the swim team roster and that he has a likelihood of prevailing on the merits of this claim.

Fifth cause of action for breach of fiduciary duty v. All Defendants: California Courts recognize that a "homeowners association has a fiduciary relationship with its members-at least with respect to dealing with the homeowner's unit," recognizing that the "relationship between the individual owners and the managing association of a common interest development is complex." °stayer; v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 126. Plaintiff provides sufficient evidence to show Quail Hill owed him a fiduciary duty. However, Plaintiff offers no legal authority to show the individual defendants owed him any fiduciary duty. As such, Plaintiff has not shown he has a probability of prevailing against the individual defendants.

Plaintiff alleges Quail Hill breached its fiduciary duty by taking sides in a dispute between Plaintiff and other members of the Board. Opposition, 13:21-24. Plaintiffs evidence does not show Quail Hill took the other board members' side at Plaintiffs expense. Plaintiff contends he received a cease and desist letter



CASE TITLE: Chemers vs. Quail Hill Community CASE NO: 30-2016-00881609-CU-CO-CJC Association after the 11/10/2015 verbal altercation at the board meeting. Chemers Decl., jj 6. However, he provides no admissible evidence that Surti, the other member involved in the incident, did not receive a similar cease and desist letter (alleging only that it was his understanding that Surti did not receive such letter). Id.

Plaintiff offers no evidence to show that the creation of an Executive Committee on 12/12/2015 constituted a breach of Quail Hill's fiduciary duty, or that Quail Hill took sides. Instead, the committee was formed to investigate alleged breaches of fiduciary duty. There Is no evidence to suggest the investigation was targeted at Plaintiff.

Plaintiff also offers no evidence to show that the 3/25/2016 letter breached any fiduciary duty. The text of the 3/25/2016 letter does not support Plaintiff's contention. Chemers Decl., Exhibit I. The purpose of the 3/25/2016 letter was to correct misstatements of fact and does not allege that the executive committee was created to investigate Chemers' breach of a fiduciary duty. Id.

Plaintiffs contention that Quail Hill's 5/11/2016 letter breached a fiduciary duty is again without merit. The purpose of the letter was to address statements made by Plaintiff. Chemers Decl., Exhibit K. As such, Plaintiffs contention that he was not provided with due process because he was not given an opportunity to be heard is without merit. Plaintiff offers no evidence to show that the letter was sent in bad faith or was an arbitrary action. Furthermore, Plaintiff contends he was denied equal access because he couldn't use Quail Hill's website or Facebook page to respond to the letter but Plaintiff offers no evidence to show any member was allowed access to post on Quail Hill's website or Facebook page.

Plaintiff also contends that the creation of an Executive Committee on 6/29/2016 was a breach of a fiduciary duty, but provides insufficient admissible evidence to support this contention. Plaintiff does not show that the CC&Rs or any governing documents prohibit the creation of such an Executive Committee.

Plaintiff also contends the declaration that his seat was vacant because he did not meet the residency requirement was a breach of fiduciary duty. However, as discussed above, Plaintiff has not shown such action was improper. Plaintiff also does not provide any evidence to show he resided within the community at the time he was removed. Plaintiff also provided no admissible evidence to show that Surti no longer resided within the community at the time Plaintiff was removed.

Plaintiff further contends that the decision to remove him from all committees was a breach of fiduciary duty. However, Plaintiff offers no evidence to show that this was done in bad faith or arbitrarily. Plaintiff offers no evidence to show that his removal from any committees constituted a breach of any fiduciary duty. Please note this was not alleged as a breach of fiduciary duty in Plaintiffs complaint.

For the reasons above, Plaintiff has not provided sufficient admissible evidence to show he is likely to prevail on this cause of action.

Sixth cause of action for ne_gligence v. All Defendants: "The elements of a negligence cause of action are: (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach ,as the proximate or legal cause of the resulting injury." Ladd v. County of San Mateo (1996) 12 Ca1.4tn 913, 917. Plaintiffs opposition addresses his fifth and sixth causes of action for breach of fiduciary duty and negligence together. Plaintiff offers no evidence that Quail Hill owes him any legal duty other than that already addressed above in regards to his claim for breach of fiduciary duty. Plaintiff offers no evidence to show that the individual defendants owe him any duty to exercise due care. For the same reasons set

DATE: 05/10/2017 MINUTE ORDER Page 5

DEPT: C26 Calendar No.

CASE TITLE: Chemers vs. Quail Hill Community CASE NO: 30-2016-00881609-CU-CO-CJC Association forth above, Plaintiff has not shown a probability of prevailing on the merits of this cause of action.

Seventh cause of action for declaratory relief (residency requirement) v. Quail Hill: Plaintiff seeks a declaration that the residency requirement is invalid as applied, that the board declaring his seat vacant amounted to a removal from the board, and that his successor improperly appointed. To prevail, Plaintiff must show "(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations." Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.

Plaintiff provides no evidence to show that an actual and present controversy exists as to the residency requirement. As discussed above, Plaintiff offered no evidence to show that he resided in the community at the time his seat was vacated and no evidence to show he currently resides within the community. Defendants offered evidence to show Plaintiff did not live within the community as of 7/5/2016. Ng Deci., ¶ 23. In addition, as discussed above, Plaintiff did not show that the Board's vote to vacate his seat was improper. As such, Plaintiff has not shown he is likely to prevail on this cause of action.

Eighth cause of action for declaratory relief (bylaws term limit) v. Quail Hill: Plaintiffs complaint seeks a declaration that the bylaws amendment establishing term limits is ineffective, and in the event the Court finds the amendment is effective, that the amendment not apply to board members elected prior to the passing of the amendment.

Plaintiff has not shown he is likely to prevail on this claim because Plaintiff does not provide the Court with the language of the adopted amendment. As such, the Court cannot determine whether the amendment violates the CC&Rs or whether the amendment applied retroactively to all currently sitting board members. In addition, as discussed above, the discussion of the petition and the action taken as a result do not violate the Open Meeting Act.

Request for Judicial Notice: Defendants' request for judicial notice is granted in part and denied in part. Defendants' request number 1, for the Court to take judicial notice of the complaint in this matter, is denied because it is unnecessary to ask the court to take judicial notice of materials previously filed in this case. IAD that is necessary is to call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) I] 9.53.1a, p. 9(1)-33.)

Defendants' request number 2, for the Court to take judicial notice of the Quail Hill's Declaration of Covenants, Conditions, and Restrictions ("CC&Rs"), is denied because Defendants did not include a copy of the CC&Rs with their request for judicial notice. Ca/. Rules of Ct., Rule 3.1306(c).

Defendants' request number 3, for the Court to take judicial notice of Quail Hill's bylaws, articles of incorporation, and amendment, is denied. Defendants did not show that that the documents are proper issues for judicial notice.

Defendants' request number 4, for the Court to take judicial notice of a complaint filed in this Court in a separate action is granted. Evid. Code, § 452(d).

Objections to Evidence: Defendants objected to Plaintiffs sur-reply on the grounds that it Is procedurally improper and not authorized by statute. Plaintiff waited until nine court days before the hearing date to file the sur-reply. "The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers." Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537.

DATE: 05/10/2017 DEPT: C26

MINUTE ORDER Page 6 Calendar No.

CASE TITLE: Chemers vs. Quail Hill Community CASE NO: 30-2016-00881609-CU-CO-CJC Association Clerk to give notice.

DATE: 05/10/2017 MINUTE ORDER Page 7

DEPT: C26 Calendar No.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE Central Justice Center 700 W. Civic Center Drive Santa Ana, CA 92702

SHORT TITLE: Charnels vs. Quail Hill Community Association

CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE

CASE NUMBER: 30-2016-00881609-CU-CO-CJC

I certify that I am not a party to this cause. I certir that the following document(s), Minute Order dated 05/11/17, Minute Order dated 05/10/17, have been transmitted electronically by Orange County Superior Court at Santa Ana, CA. The transmission originated from email address on May 11, 2017, at 4:31:42 PM PDT. The electronically transmitted document(s) is in accordance with rule 2.251 of the California Rules of Court, addressed as shown above. The list of electronically served recipients are listed below:

GORDON 84 REES LLP GORDON & REES LLP [email protected] LSAPASCOE©GORDONREES.COM

GORDON & REES LLP GORDON & REES LLP MPOSARD4MORDONREES.COM [email protected]

ULWELLING SIDDIQUI LLP RHAVELLINGCLUSLLP.COM

Clerk of the Court, by: 1.-4bedea Cit.turpdirti , Deputy

CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE

V3 1013a (June 2004) Code orCiv. Procedure, § CCP1013(a)

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