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The Litigation Discovery Process for Beginners

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Litigation can be complex, expensive, time consuming, and contentious! These same four words can be said of discovery, the process whereby each side learns the facts supporting the other side’s case.

Litigation and discovery, in fact, go hand in hand, and although difficult at times, it is important to understand the process and appreciate why it is not only necessary but a powerful and important tool.

Discovery, or the “discovery process,” is exactly what the name implies:

  • It is the process of discovering evidence to prepare your case for trial.
  • It also involves discovering the evidence of the other party.

The purpose of discovery, and the ideals behind it, is to promote the truth-seeking function of litigation.  In other words, it is designed to make trial less of a game and more of a fair contest. 

There are two broad categories of discovery: Written Discovery (which includes interrogatories and requests for production of documents, the two most common forms), and depositions.

Interrogatories: Interrogatories are nothing more than written questions prepared by the attorney and sent to the other side. The opposing party is then required to answer the questions and affirm, under oath, the answers are true. These questions are usually very specific, asking for information such as dates and times, descriptions of events and even the identification of witnesses.

Requests for production of documents: Not surprising, requests for production of documents require the other party to produce documents in that party’s possession which are relevant to the case. The determination as to what is or is not relevant hinges upon the particular facts of the matter at hand; there is no “one size fits all.”  Unlike interrogatories, requests for production of documents may be sent to non-parties. Non-parties are individuals or business entities that are not involved in the lawsuit but may possess documents that contain information that is relevant to it.

Depositions: A deposition is a sworn statement of a party or a witness that is given in the presence of a court reporter. The court reporter records the questions asked of the witness and the answer he or she gives. The court reporter then converts the recording into a written transcript that can be used at trial if the witness is unavailable. The deposition transcript can also be used to ensure the witness does not change his or her testimony at a later date.

Ultimately, discovery enables a more comprehensive understanding of the facts and allows for more informed and strategic decisions as the case is being prepared for trial. Having a clear path on which to navigate also increases the possibility the case may settle.

Because of this, investing time and effort in the discovery phase can have considerable cost savings later on down the road! 

The Wheels of Justice Speeding Up! Bank of America v. Miami

A recent Fair Housing Act case might give community associations another tool to use in addressing bad actors who commit unlawful discrimination within the community.
The City of Miami sued Bank of America and Wells Fargo for predatory mortgage lending practices that caused a reduction in the City’s tax revenue. The City alleged the banks violated the Fair Housing Act by lending money to minority home buyers on less favorable terms (higher interest subprime loans) than similarly qualified non-minority applicants and homeowners with higher interest subprime loans were more likely to default on their mortgages. The banks were allegedly unwilling to renegotiate the terms of their predatory loans and foreclosed on many properties in minority neighborhoods. This reduced the value of the foreclosed homes and other homes in the neighborhoods, which caused a reduction in the City’s tax revenue. The complaint also alleged the City had to spend more money on services in these neighborhoods to reduce blight and address the dangerous conditions found in communities with high vacancy rates.
In response, the banks argued that the City was not a “proper party” to this lawsuit, because it was not the direct victim of the banks’ alleged discriminatory conduct. Essentially, the banks asserted that the City did not have standing to sue because the City was not within the Fair Housing Act’s “zone of influence.”  The banks also argued that the alleged damages suffered by the City were too far removed from the banks’ alleged discriminatory conduct for its wrongdoing to be considered the proximate cause of the City’s lost tax revenue.
In a 5-3 decision, the United States Supreme Court ruled that the City was an “aggrieved party” under the Fair Housing Act and that it has standing to sue, because Congress intended to confer standing broadly under the Fair Housing Act. The Court remanded the case to the lower court to determine whether there was a direct relation between the injury asserted and alleged discriminatory conduct. [1]
What does this mean and how far could such an expansive reading of standing extend to an association?
For example, if a community association learns of discriminatory conduct within its community, would the association be able to bring a Fair Housing Act complaint against the perpetrator? 
 
Suppose a homeowner harasses his neighbor because of the neighbor’s race, and the association’s board and management divert resources to investigate and remedy violations of its governing documents.  Could the association sue the harassing homeowner under the Fair Housing Act? 
 
What if a board member sexually harasses a resident during a board meeting?  Certainly, the association could be exposed to liability for that director’s conduct.  But, could the association distance itself from that director’s conduct by suing him for violating the Fair Housing Act?
 
Suppose the board of directors grants a request for a reasonable accommodation under the Fair Housing Act to provide a tenant with a disability exclusive use of a desirable parking space.  If an angry homeowner thereafter harasses that tenant, because of the accommodation, could the association sue the homeowner for violating the Fair Housing Act?
The answers to these questions are not yet known. However, in 2016, the Department of Housing and Urban Development (HUD) changed its regulations governing enforcement of the Fair Housing Act to clarify that housing providers, including associations, may (and perhaps in the view of HUD, should) be liable for failing to take appropriate action in response to alleged discrimination or harassment within their communities, and where such bad behavior is not necessarily a violation of the CC&R’s.
This indicates that the Fair Housing Act may be used as a sword (not a shield) by associations confronted with unlawful discrimination. In other words, the way seems clear for associations to commit resources and use the Fair Housing Act to combat discrimination, at least where the bad actors are members or residents of the association.

 

 

[1] In contrast, consider Dodaro v. Std. Pac. Corp., 212 U.S. Dist. LEXIS 47099 wherein plaintiff homeowners filed suit against developers who targeted poor borrowers, and facilitated subprime loans with accleration clauses, the failure of which loans allegedly led to the devaluation of all other homes in the community.  The developers sought and were granted dismissal of all claims. 

 

Thomas Jefferson School of Law Receives $140,000 Gift from Epsten, APC for Trial Advocacy Program

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Epsten, APC is proud to announce that the Thomas Jefferson School of Law will receive a $140,000 gift from the firm to support the Thomas Jefferson School of Law’s trial advocacy program. The endowment fund will be known as the Epsten Trial Advocacy Program and will help fund the student trial practice teams in competitions in which the law school participates.

The Thomas Jefferson School of Law’s Mock Trial Team has an outstanding track-record of success against teams from the nation’s top-ranked law schools. The Mock Trial Team competes in trial advocacy competitions, and students develop courtroom skills of particular value to a trial lawyer, such as a criminal prosecutor or defense attorney, a personal injury or medical malpractice plaintiffs’ lawyer, or an insurance defense lawyer.

Epsten, APC is pleased to contribute towards the Trial Advocacy Program. It is not only a great way to support the alma mater of Jon Epsten and that of several other Epsten, APC attorneys, but it also is a great way to give back to the community and support our next generation through the best asset anyone can be given, a quality education.

The mission of Thomas Jefferson School of Law is to provide an outstanding legal education for a nationally-based, diverse student body in a collegial and supportive environment with attention to newly emerging areas of law, particularly those related to technological development, globalization and the quest for social justice. Located in Downtown San Diego, Thomas Jefferson School of Law has evolved into an innovative, cutting-edge law school, devoted to the individual needs and success of its students.

 

Why are There Animals in the Clubhouse When Your Governing Documents Prevent Pets?

By Karyn A. Larko, Esq.

It is common for associations to have CC&Rs provisions or rules that prohibit residents from bringing pets into the clubhouse, pool complex or other portions of the common area. It is also increasingly common to see residents bring animals in these areas despite such prohibitions.

While it may appear that this trend is indicative of a growing disregard for the important role associations and their governing documents play in residential communities, the reality is that in many cases, these residents may have a legitimate right under federal law to have their animals with them.

Remember, homeowners associations are subject to the Federal Fair Housing Act (the “Act”). Under the Act, a housing provider (a homeowners association is considered to be a housing provider) must grant reasonable accommodations to those with qualifying disabilities whenever the accommodation is necessary to give the disabled residents an equal opportunity to use and enjoy their homes and the common area facilities.

One of the most common disability-related requests associations receive is to allow disabled residents to bring their service animals into portions of the common area where pets are prohibited. Under the Act, both traditional service animals (e.g., seeing eye dogs) and emotional support or comfort animals (“ESA”) qualify as service animals.

Because disabilities requiring ESA (e.g., depression, anxiety, PTSD) may not be readily apparent, it may not be possible to differentiate a pet from an ESA through visual observation of the resident. Moreover, because no specific training, skills, certification or characteristics are needed to be an ESA, many animals that you might not envision being service animals may, in certain circumstances, qualify as ESA service animals.[1]

For these reasons, we recommend:

  1. Broach any apparent pet related governing document violation cautiously and discretely.
  2. Seek legal counsel any time a resident requests an exemption to any of the association’s pet restrictions on the basis that he or she is disabled.

Following these two key points are certain to help keep you and your association “out” of the doghouse!

[1] The benefits of an ESA are deemed to come from the animal’s inherent qualities, which include emotional support, comfort, and feelings of safety.

Association Finds Innovative Way to Save Money on Water Bill

Cape Concord Homeowners Ass’n. v. City of Escondido
7 Cal. App. 5th 180

Cape Concord Homeowners Association found an interesting way to save a lot of money. In 2006, the City of Escondido began charging the association sewer service fees based on the quantity of water used, rather than a flat rate.  The problem was that an “overwhelmingly vast majority” of the water used by the association was for irrigation that was not connected to any sewer.

In 2012, at the association’s request, the City installed separate water meters for the pool and pool house, which were connected to the sewer.  This separated the meters that provided irrigation water from those that served bathrooms and showers connected to the sewer.  The City properly stopped charging sewer fees for the irrigation water.  This saved the association a ton of money.  In 2013, the association sued the City for a refund of the estimated $175,176.08 in sewer fees that it paid between 2006 and 2012 for which the City provided no sewer services.  The association lost at the trial level and appealed that decision.

The Court of Appeal cited Government Code section 53082, which requires an agency to refund money collected for a sewer use fee “for which no service has been provided” with respect to “premises…not connected to the sewer system.”  Even though only a tiny percentage of the water that flowed through the meters between 2006 and 2012 was connected to the sewer and used for the pool and pool house, the Court concluded that the pool and pool house were part of the “premises” served by those meters.  Therefore, the association was not entitled to a refund.

Even though the association was unable to recover the money it overpaid between 2006 and 2012, by asking the City to install separate meters for “premises…not connected to the sewer system,” the association probably saved tens of thousands of dollars per year in unnecessary sewer service fees.

Is your association billed for sewer services based on the amount of water it uses?
Are the meters that service irrigation lines separate from those that service facilities connected to the sewer?  If not, consider asking for separate meters for irrigation lines.  If so, check your water bill to make sure that your association is not being charged for sewer services for those irrigation lines.

2016 Legal Symposium Registration Opens September 1st!

Our attorneys and staff are gearing up for our Annual Legal Symposium later this Fall.
Please mark your calendars:

Online registration will open this Thursday, September 1st for our San Diego and Coachella Valley symposia locations.  

  • November 18th | Agua Calienta Casino Resort Spa, Rancho Mirage
  • December 2nd | Town and Country Resort & Convention Center, San Diego
An email with a link to register will be sent out on September 1st and will also be available via our website at: www.epsten.com/legal-symposium.

EPSTEN CELEBRATES 30 YEARS!

Hundreds gather for an Open House celebration of the well-known and respected law firm Epsten.

On Friday, July 15, 2016, Epsten celebrated its 30th anniversary with an open house held at their San Diego office.  The firm was delighted to welcome over 200 friends, including clients, city attorney representatives, retired attorneys, staff members, current members of the Judiciary, vendors serving our clients, representatives of the California Association of Community Mangers (CACM), the Community Associations Institute (CAI) and lawyers from other law firms.

Guests came from all over Southern California, to be welcomed by fine weather, and festivities, including catered hors d’oeuvres, wine and cake.  Shareholders conducted office tours of our almost-new office space, a building purchased in 2011 just down the street from their prior office. Remarks and congratulations were exchanged, and the shareholders reminisced about the funny and strange world of associations. The acknowledged favorite was Jon Epsten’s story about how he came to associate with Doug Grinnell long before the fax machine… with a special note of appreciation for the incredibly hard work performed by community association volunteers and association managers.

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FHA & VA Disclosure – Effective July 1, 2016

AB 596 Annual Budget Report

Reminder: Civil Code section 5300 is amended beginning July 1, 2016.

The annual budget report of a condominium project must include a separate statement describing the status of the common interest development as a Federal Housing Administration (FHA)-approved condominium project and as a federal Department of Veterans Affairs (VA)-approved condominium project.

Two statements are required to be added to the annual budget report and must be on a separate piece of paper in at least 10-point font in the following form:

FHA: “Certification by the Federal Housing Administration may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the Federal Housing Administration.”

VA: “Certification by the federal Department of Veterans Affairs may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the federal Department of Veterans Affairs.”

PRACTICE TIP:
For condominium projects, update your annual budget reports. There is no requirement to monitor status or report changes during the year. The association may want to add other information to the required wording, directing owners to FHA and VA websites which are updated during the year. The statute specifies that condominium projects must include the above statements, but the wording of the required statements asking projects to circle whether or not they are a condominium, has caused some people to think that all associations should include these disclosures.

Louise Stettler receives the CAI San Diego Samuel L. Dolnick Lifetime Achievement Award

Congratulations to Louise Stettler, the 2016 recipient of the Salmuel L. Dolnick Lifetime Achievement Award.

Named after Community Association Volunteer Leader, Samuel L. Dolnick, this prestigious award honors members who have provided outstanding service to CAI-San Diego. Louise is the third recipient from Epsten to receive the award. Jon Epsten, Kieran Purcell and Louise Stettler are among the handful of honorees who have contributed substantially to the success of CAI-San Diego through their efforts and leadership to receive this award.

Congratulations Louise!

 

Source: CAI San Diego www.cai-sd.org