THE FOLLOWING WAS PUBLISHED ON THE DBPOA WEBSITE ON MARCH 12, 2011:

Clearing Up Miss-information About Your Property Owners Association

A Message to Discovery Bay Property Owners Association Members.

The purpose of this message is to give DBPOA members some facts to clarify the “miss-information” being distributed by the group calling themselves the Discovery Bay Property Owners Awareness Coalition or simply the “Coalition”.

First, we need to go back to November 2009. At that time Superior Court Judge Judith Craddic ruled that the Discovery Bay Property Owners Association (DBPOA) was in fact a Davis-Stirling common interest association. Since the DBPOA was not operating as a Davis-Stirling organization and did not follow all provisions of the Davis-Stirling Act, Judge Craddic dismissed a lawsuit against an association member.

On November 11, 2009, the DBPOA board convened an emergency executive session to see if the DBPOA should direct the attorney representing DBPOA to appeal Judge Craddic’s decision, or live within the constraints of her decision. The attorney estimated the cost of appeal between $40,000 and $60,000 and there would be no guarantee that anything would change since we do have a common interest in maintaining property values even if we do not have common property to manage. As a point of interest, this was not a “secret meeting” since membership does not have to be notified of executive sessions of the board since we are not governed by the Brown Act.

At the meeting on November 11, 2009 the Board voted to comply with Judge Craddic’s ruling and not to appeal. The cost and probable outcomes were not in the interest of the DBPOA. Thus we were forced into accepting the fact that DBPOA was Davis-Stirling and so voted. 

Davis-Stirling does allow the DBPOA to raise dues 20% a year. But DBPOA is also a non-profit and cannot make money for the sake of making money. In particular the current board is dedicated to cutting costs in all possible ways. 

Dues could never reach “$2,400.00” or even “$150.00” as stated by the coalition. Prior Boards were supported by a Contract Secretary at a cost of $2,000 per month. We replaced the Contract Secretary with a management company at $750 per month. The company hired is Association Management Company, LLC. (AMC). AMC does add charges for extraordinary expenses like mailings and the Association has always paid for postage. The Board has done things like reduce board meetings to quarterly to further reduce the costs.

A prior Board did authorize a lawsuit against a DBPOA member, which was referred to above. As a result of that decision the member has been awarded attorney fees in excess of $47,000. This along with cost of the recall election will necessitate a special assessment to members. No members of the current Board were involved in the lawsuit and regret having to take this action.

THE TRUTH IS:

THE JUDGE DID NOT DISMISS THE LAWSUIT.  THE HOMEOWNERS WILL HAVE TO PAY FOR THE DBPOA’S LOSS AND WILL NOW BE ASSESSED THE APPROXIMATE $50,000 FOR THE HOMEOWNER’S COURT EXPENSES. 

THE NOVEMBER 10, 2009 MEETING DID NOT QUALITY AS AN “EMERGENCY EXECUTIVE SESSION” UNDER THE DBPOA BYLAWS OR ANY CALIFORNIA STATUTE.  THEREFORE, HOMEOWNERS SHOULD HAVE BEEN NOTIFIED OF THIS MEETING. 

AT THE NOVEMBER 10, 2009 MEETING, DOMINIC CARANO, JACK PARKER, 
OMAR HINDIYEH, PETER BAYLACQ, DAVE CIRULI, AND SHIRLEY TILTON
PASSED A RESOLUTION THAT THE DBPOA IS GOVERNED BY THE 
DAVIS-STIRLING ACT FOR COMMON INTEREST DEVELOPMENTS.
THE DBPOA HAS NO COMMON INTEREST PROPERTY.

 CIVIL CODE 1374 STATES:   Nothing in this title may be construed to
apply to a development wherein there does not exist a common area as
defined in subdivision (b) of Section 1351.

1351.  As used in this title, the following terms have the following meanings:

     (b) "Common area" means the entire common interest development

except the separate interests therein. The estate in the common area

may be a fee, a life estate, an estate for years, or any combination

of the foregoing. However, the common area for a planned development

specified in paragraph (2) of subdivision (k) may consist of mutual

or reciprocal easement rights appurtenant to the separate interests.

     (k) "Planned development" means a development (other than a

community apartment project, a condominium project, or a stock

cooperative) having either or both of the following features:

(1) The common area is owned either by an association or in common

by the owners of the separate interests who possess appurtenant

rights to the beneficial use and enjoyment of the common area.

(2) A power exists in the association to enforce an obligation of

an owner of a separate interest with respect to the beneficial use

and enjoyment of the common area by means of an assessment which may

become a lien upon the separate interests in accordance with Section

1367 or 1367.1.
 

BOARD MEMBER BOBBI NUGENT VOTED AGAINST BECOMING DAVIS-STIRLING BECAUSE “IT WAS NOT IN THE BEST INTEREST OF THE COMMUNITY”.

UNDER OUR DBPOA BYLAWS, DUES CANNOT BE INCREASED WITHOUT HOMEOWNER APPROVAL.  THIS “PROTECTION CLAUSE” IS OVERRIDDEN BY CIVIL CODES (DAVIS-STIRLING).  THE BOARD OF DIRECTORS CAN NOW LEGALLY (1) IMPOSE A REGULAR ASSESSMENT THAT IS NOT MORE THAN 20 PERCENT GREATER THAN THE REGULAR ASSESSMENT FOR THE ASSOCIATION'S PRECEDING FISCAL YEAR; (2) IMPOSE SPECIAL ASSESSMENTS WHICH IN THE AGGREGATE DO NOT EXCEED 5 PERCENT OF THE BUDGETED GROSS EXPENSES OF THE ASSOCIATION FOR THAT FISCAL YEAR; AND (3) IMPOSE AN UNLIMITED EMERGENCY ASSESSMENT AMOUNT.  ALL THREE OF THE ABOVE ASSESSMENTS CAN BE IMPOSED ANNUALLY WITHOUT HOMEOWNER APPROVAL. 

IN TEN YEARS, DUES COULD REACH OVER $150.00; AND IN TWENTY-FIVE YEARS, ALMOST $2,400.00.  IS THE BOARD UNABLE TO DO THE MATH? 

 20% ANNUAL DUES INCREASE

THE CONTRACT SECRETARY’S SALARY WAS A FIXED AMOUNT.  AMC IS A “FOR PROFIT” COMPANY.  HOMEOWNERS WILL PAY FOR ANYTHING REQUESTED THAT IS OUTSIDE OF THE “BASE FEE” AT A RATE OF $50/$95/$150 PER HOUR FOR THE TIME INVOLVED, DEPENDING ON WHO AT AMC IS ASSISTING YOU.  ONCE AGAIN, BOARD MEMBER BOBBI NUGENT WAS THE ONLY ONE WHO VOTED AGAINST HIRING AMC BECAUSE “IT WAS NOT IN THE BEST INTEREST OF THE COMMUNITY”.

WATCH FOR HIGHER ESCROW FEES FROM AMC.  ON MARCH 16, 2011, A DBPOA HOMEOWNER SENT THE FOLLOWING EMAIL:  “A friend of mine selling his house on Drakes was just informed by his title company that the DBPOA has a new up front document fee of $350.00 that must be paid to get the documents from the assoc necessary to close.  Did I miss something somewhere again?  When did the assoc implement this new up front fee?  Doesn't 14 years of dues seem like an unreasonable price to pay in order to get the documents so that you can sell your home because it happens to be in the DBPOA jurisdiction?  Just thought I would share.”  

BOBBI NUGENT SUED THE DBPOA TO FORCE COMPLIANCE BECAUSE THE OTHER BOARD MEMBERS AND THE INSPECTOR OF ELECTIONS VIOLATED SEVERAL LAWS. UNFORTUNATELY, ALTHOUGH COST EFFECTIVE, SMALL CLAIMS COURT WAS NOT THE APPROPRIATE COURT IN WHICH TO PURSUE THIS; CIVIL COURT WAS RECOMMENDED BEFORE DISMISSAL BY THE JUDGE.

CURRENT BOARD MEMBERS DAVE CIRULI, LOWELL ONSTAD, BOB WHITE AND WARD MESSERSMITH WERE INVOLVED EITHER AS A BOARD MEMBER OR AS A DERC MEMBER IN THE ACTION  WHICH RESULTED IN A LAWSUIT LOSS AGAINST TRYING TO FORCE A HOMEOWNER TO REMOVE COUNTY-OWNED PROPERTY; WHICH IS CAUSING US ALL TO BE ASSESSED NOW.

THE MARCH 14, 2011 YELLOW POSTCARD, SENT TO HOMEOWNERS REGARDING THE RECALL, CAME FROM THE RETURN ADDRESS OF ED TURMAN (PAST DBPOA BOARD MEMBER) AND, AS YOU CAN SEE, CONTAINED MISLEADING INFORMATION BY DENYING THESE BOARD MEMBERS’ INVOLVEMENT IN THE ABOVE LAWSUIT.

REQUESTING THE RECALL OF CURRENT BOARD MEMBERS STUART HUMPHREYS, DAVE CIRULI, BOB WHITE, LOWELL ONSTAD, LARRY GREEN, AND WARD MESSERSMITH WAS BECAUSE THEY WERE RESPONSIBLE FOR HIRING THE ASSOCIATION MANAGEMENT COMPANY (AMC), DOING NOTHING TO RESCIND THE RESOLUTION TO BE GOVERNED BY DAVIS-STIRLING, AND FAILING TO ADDRESS ELECTION PROCEDURE VIOLATIONS WHEN REQUESTED.

THE APRIL 12, 2011, RECALL ELECTION RESULTS WERE AS FOLLOWS:

Dave Ciruli: recall yes votes 181; recall no votes 294

Larry Green: recall yes votes 186; recall no votes 288

Stuart Humphreys: recall yes votes 183; recall no votes 291

Ward Messersmith: recall yes votes 188; recall no votes 286

Bobbi Nugent: recall yes votes 285; recall no votes 194

Lowell Onstad: recall yes votes 185; recall no votes 290

Bob White:  recall yes votes 183; recall no votes 290

ELECTION RESULTS APPEAR TO INDICATE THAT AT LEAST 294 PROPERY OWNERS BELIEVED THE DBPOA’S MISLEADING INFORMATION AND SCARE TACTICS; AND 194 PROPERTY OWNERS DID NOT.  MEANWHILE, THE MAJORITY OF PROPERTY OWNERS (1,142) DID NOT OR COULD NOT VOTE.

SO ESSENTIALLY, THESE 294 PROPERTY OWNERS HAVE CAUSED THE OTHER 1,336 PROPERTY OWNERS TO BE SUBJECTED TO THE FOLLOWING:

1. ANNUAL INCREASES IN DUES.

2. ANNUAL INCREASES IN ASSESSMENTS FOR OPERATING EXPENSES.

3. NON-JUDICIAL FORECLOSURES.

4. HIGHER ESCROW FEES.

5. UNLIMITED ASSESSMENTS FOR COURT ORDERED EXPENSES.  IT DOES NOT MATTER WHO WINS, ALL PROPERTY OWNERS WILL PAY FOR THE ATTORNEY(S) AND COURT EXPENSES; LIKE THE CURRENT ASSESSMENT TO PAY FOR THE DBPOA LOSS IN SUING A HOMEOWNER TO REMOVE COUNTY-OWNED PROPERTY.

6. AN INVISIBLE “DON’T CONTACT US” BOARD OF DIRECTORS BECAUSE THE MANAGEMENT COMPANY HANDLES ALL THE DBPOA CORPORATION BUSINESS. 

7. MONTHLY MANAGEMENT COMPANY FEES; PLUS ADDITIONAL FEES FOR ANY HOMEOWNER QUESTIONS THAT REQUIRE MANAGEMENT COMPANY PERSONNEL INVOLVEMENT, AND FOR COPIES OF ASSOCIATION DOCUMENTS.