11-01-2010 amended cross complaint

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28 CHARLES F. & CAROL C. BALDWIN FIRST AMENDED CROSS-COMPLAINT of 53.

CHARLES F. BALDWIN andCAROL C. BALDWINIn Proper Persons8032 Red Pine CourtCitrus Heights, CA 95610-4626Phone: 916-729-5213Fax: 916-729-7468

Defendants Cross-Complainants In Pro Per

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF SACRAMENTO

SUNRISE HOMEOWNERS ) Case No. 34-2009-00058393-CU-CO-GDSASSOCIATION INC., a California ) [Unlimited Civil]nonprofit mutual benefit corporation, )

Plaintiff, ) FIRST AMENDED CROSSv. ) COMPLAINT FOR:

) 1. DISABILITY DISCRIMINATIONCHARLES F. BALDWIN and CAROL ) 2. DENIAL OF CIVIL RIGHTS;C. BALDWIN, as Trustees of the ) (Gov. Code 12955)CHARLES F. & CAROL C. BALDWIN ) 3. DENIAL OF CIVIL RIGHTS; LIVING TRUST; and DOES 1 through ) (Gov. Code § 12948)20, inclusive, ) 4. BREACH OF COVENANT OF

Defendants, ) GOOD FAITH & FAIR DEALING ) 5. DENIAL OF DUE PROCESSCHARLES F. BALDWIN and CAROL ) 6. BREACH OF CONTRACT C. BALDWIN, as Trustees of the CHARLES) 7. BREACH OF FIDUCIARY DUTYF. & CAROL C. BALDWIN LIVING ) 8. INTENTIONAL INFLICTION OFTRUST; and DOES 1 through 20, inclusive, ) EMOTIONAL DISTRESS

Cross-Complainants ) 9. CIVIL CONSPIRACYv. )

) DATE:SUNRISE HOMEOWNERS ) TIME:ASSOCIATION INC., a California ) DEPT:nonprofit mutual benefit corporation, )and DOES 1 -250, inclusive, ) TRIAL DATE:

Cross-Defendant. ) )///

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REASONING FOR THIS FIRST AMENDED CROSS COMPLAINT

In accordance with the Minute Order of October 28, 2010; Cross-Complainants “... file[d]

and serve[d] the cross-complaint attached as Exhibit A to their declaration...”

However, CHARLES F. BALDWIN and CAROL C. BALDWIN, Cross-Complainants,

hereby submit this First Amended Cross-Complaint for the following reasons:

1. To correct several syntax, typographical, punctuation, and grammatical errors containedwithin the original Cross Complaint; and 2. Include additional evidence recently discovered to support each cause of action; and3. To clearly state and describe facts in support of each cause of action; and 4. Include a TABLE OF INDEXES and detailed TABLE OF AUTHORITIES.

These corrections are necessary in the interest of justice and clarity. Cross-Complainants

respectfully submit this First Amended Cross Complaint as written.

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TABLE OF INDEXES

A. INTRODUCTORY STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. REASONABLE ACCOMMODATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. MAJOR LIFE ACTIVITIES and DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

E. REASONABLE MODIFICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

F. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

G. PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

H. JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. FACTUAL ALLEGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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J. STATEMENT OF DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24FIRST CAUSE OF ACTION

Disability Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25SECOND CAUSE OF ACTION

Denial of Civil Rights - Unruh Civil Rights Act . . . . . . . . . . . . . . . . . . . . . . . . 26THIRD CAUSE OF ACTION

Denial of Civil Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27FOURTH CAUSE OF ACTION

Breach of the Covenant of Good Faith and Fair Dealing . . . . . . . . . . . . . . . . . 28FIFTH CAUSE OF ACTION

Denial of Due Process Constitutional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 30SIXTH CAUSE OF ACTION

Breach of Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33SEVENTH CAUSE OF ACTION

Breach of Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35EIGHT CAUSE OF ACTION

Intentional Infliction of Emotional Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . 37NINTH CAUSE OF ACTION

Civil Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

K. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

L. PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

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A. INTRODUCTORY STATEMENTS

NOTE: All BOLD and underscore contained herein are for emphasis only and have been added

by Cross-Complainants unless otherwise stated.

1. Under the California Fair Employment and Housing Act (hereinafter “FEHA”) (Gov.

Code § 12900 et seq.; subsequent unspecified statutory references are to the Government Code),

Cross-Complainants CHARLES F. BALDWIN and CAROL C. BALDWIN, as Trustees of the

CHARLES F. & CAROL C. BALDWIN LIVING TRUST and CHARLES F. BALDWIN

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1 See 42 U.S.C. 3604(f)(3)(B).

CHARLES F. & CAROL C. BALDWIN FIRST AMENDED CROSS-COMPLAINT of 53.

(hereinafter individually as “Mr. Baldwin”) and CAROL C. BALDWIN (hereinafter individually

as “Mrs. Baldwin”), as natural persons (hereinafter collectively referred to as the “Cross-

Complainants” and/or “The Baldwins”) allege the following complaints against Cross-Defendant,

SUNRISE HOMEOWNERS ASSOCIATION INC., a California nonprofit mutual benefit

corporation, (hereinafter the “HOA”), and DOES 1 through 250 (hereinafter collectively referred

to as the “Cross-Defendant”).

2. Cross-Defendant unlawfully, arbitrarily, capriciously, and maliciously practiced acts of

discrimination on the basis of Mrs. Baldwin’s legal physical disability by refusing “to make

reasonable accommodations in rules, policies, practices, or services when these accommodations

may be necessary 1 to afford a disabled person equal opportunity to use and enjoy a dwelling” for

its disabled homeowner association members. (§§ 12927, subd. (c) (1), 12955; 42 U.S.C. §

3604(f)(3)(B); see Selmon v. Pourtsmouth Drive Condo. Ass’n, 89 F.3d 406 (7th Cir. 1996).) “The

simple fact that an accommodation would provide a ‘preference’ – in the sense that it would permit

the [person] with a disability to violate a rule that others must obey – cannot, in and of itself,

automatically show that the accommodation is not ‘reasonable.’” (U.S. Airways v. Barnett, 535

U.S. 391, 397 (2002) (italics in original); Bryant Woods Inn v. Howard County, 124 F.3d 597, 603

(4th Cir. 1997) (cited in Colon-Jimenez v. GR Management Corp., 218 F. App’x 2 (1st Cir. 2007)).

3. In this matter, Cross-Complainants, CHARLES F. BALDWIN and CAROL C.

BALDWIN, sought “reasonable accommodations” from their homeowners association development

Board of Directors (hereinafter “board”) through two separate Department of Fair Employment and

Housing (hereinafter “DFEH”) Complaints filed by the Cross-Complainants plus multiple United

States Postal Service certified mailings to Cross-Defendant board and architectural control

committee requesting Internal Dispute Resolution (hereinafter “IDR”) (See Civil Code § 1363.810).

In addition, Cross-Complainants agreed to non-binding mediation with Cross-Defendant on three

separate occasions, only to be rejected by Cross-Defendant and further deprived by the HOA board

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2 24 CFR §100-203(a) It shall be unlawful for any person to refuse to permit, at the expense of a

handicapped person, reasonable modifications of existing premises, occupied or to be occupied by a handicapped

person, if the proposed modifications may be necessary to afford the handicapped person full enjoyment of the

premises of a dwelling.


of “equal opportunity to use and enjoy a dwelling” as required by all federal and state laws.

4. Homeowner association boards have the discretion to adopt reasonable rules and

regulations regarding “reasonable accommodations” for its disabled and/or handicapped

homeowner members. “Reasonable accommodations” are made by waiving or modifying a

particular rule, policy, procedure or practice in order for the handicapped and/or disabled person

to have equal access to and enjoyment of his/her/their dwelling and common area(s). Additionally,

an association MUST ALLOW a handicapped and/or disabled person, at his/her/their own

expense, to make the "reasonable modification" 2 necessary for the full enjoyment of their dwelling

or common area(s).

5. Under Title VIII of the Civil Rights Act of 1968, a/k/a The Fair Housing Amendments

Act [42 U.S.C. § 3601 et. seq. (1968)], amended in 1974 [Pub. L. 93-383, Title VIII, § 808(b)(1),

Aug. 22, 1974, 88 Stat. 729], and further amended in 1988 as The Fair Housing Amendments Act

(“FHAA”) [42 U.S.C. § 3601 et. seq. (1988)] to include discrimination based on a handicap, a

plaintiff can establish discrimination based on several theories: (1) intentional or overt

discrimination, (2) disparate treatment, (3) disparate impact, and (4) failure to make reasonable

accommodations or to allow a reasonable modification when merited. (See 42 USC § 3604; 24

CFR § 100.203; Advocacy Ctr. for Persons With Disabilities, Inc. v Woodland Estates Ass’n, Inc.

(MD Fla 2002) 192 F Supp 2d 1344, 1348; Tsombanidis v. West Haven Fire Dep’t., 352 F.3d 565,

573 (2d Cir. 2003).

6. Cross-Defendant discriminated against the Cross-Complainant because of Mrs.

Baldwin’s permanent military service-connected legal disability, (1) by failing to reasonably

accommodate Mrs. Baldwin, (2) by failing to approve a reasonable modification to her home,

(3) by deliberately disguising/hiding their disability discrimination among three other frivolous

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3Mrs. Baldwin, SSgt, USAF, a 100% medically retired post Viet Nam veteran, required a reasonable

accommodation/modification involving the installation of an electric powered retractable awning across the width of

the Baldwin’s garage door necessary to her mental and physical enjoyment of the dwelling.

4Mrs. Baldwin’s garage was built in 1973 with this pre-existing shortened condition and remained as such

when the home was purchased in 1990 from the previous 100% disabled, double leg amputee, U.S. Army Viet Nam

War veteran owner, namely Mr. Ronald K. Deeds (deceased). Lot 197, a/k/a 7982 Stone Canyon Circle, was also

build in 1973 with a even more significantly shortened garage depth by a 100% Korean War U.S. Air Force veteran

original owner, namely Mr. Antonio S. Di Biaso (deceased).


alleged architectural control violations, and (4) then litigate the reasonable accommodation/

modification as injuries suffered by the Cross-Defendant. Cross-Defendant with malice and

contempt discriminated against the Baldwins in an arbitrary manner, decreasing and interfering

with the Baldwins’ rights to enjoyment of the housing accommodations on an equal basis with other

residents of the HOA. In one instance, Cross-Defendant informed Mrs. Baldwin in writing that the

“reasonable modification” would be acceptable if installed in Cross-Complainants’ back yard

(where there is no access to Mrs. Baldwin’s wheelchair adapted vehicle). On another occasion,

Cross-Defendant informed Mrs. Baldwin 3 in writing that the “reasonable modification” was not

necessary if Mrs. Baldwin would simply empty her garage and park her wheelchair adapted van

inside the garage. However, Mrs. Baldwin’s van is 5½ inches longer than the overall depth of the

garage, a fact that the HOA made no attempt to investigate before acting upon their “benign

neglect” and “apathetic attitudes rather than affirmative animus” (Alexander v. Choate, 469 U.S.

287, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985)). Cross-Defendant acted unreasonably by trying to

dictate how the Baldwins maintain the interior of their garage/home/Lot (See Fountain Valley

Chateau Blanc Homeowner’s Ass’n v. Department of Veterans Affairs (Cunningham v. Superior

Court) (1998) 67 CA4th 743, 79 CR2d 248.) 4. In Fountain Valley, the Court of Appeal found it

"virtually impossible" to say that the association acted reasonably. Presiding Justice David G. Sills

wrote for the court:

“[T]he association's rather high-handed attempt to micromanage Cunningham's personalhousekeeping--telling him how he could and could not use the interior rooms of his ownhouse--clearly crossed the line and was beyond the purview of any legitimate interest it hadin preventing undesirable external effects or maintaining property values.

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. . . Particularly galling to us--and clearly to the jury as well--was the presumptuousattempt to lecture Cunningham about getting rid of his old clothes, the way he kept his ownbedroom, and the kind of reading material he could have. To obtain some perspective here,we have the spectacle of a homeowners association telling a senior citizen suffering fromHodgkin's disease that, in effect, he could not read in his own bed! When Cunninghambought his unit, we seriously doubt that he contemplated the association would ever tell himto clean up his own bedroom like some parent nagging an errant teenager.”

B. MEMORANDUM OF POINTS AND AUTHORITIES

7. Cross-Complainants realleges, and incorporate by reference herein, each and every

allegation contained in paragraphs 1 through 6 inclusive, as if fully set forth herein.

8. By California Law and precedent and pursuant with the Supreme Court of the United

States, pro se ( pro per) Pleadings MAY NOT be held to the same standard as a lawyer’s and/or

attorney’s and whose motions, pleadings and all papers may ONLY be judged by their function and

never their form. See: Haines v. Kerner; Platsky v. CIA; Anastasoff v. United States. Pro Se (pro

per) Litigants are to be held to less stringent pleading standards as follows:

Haines v. Kerner, 404 U.S. 519-421; In re Haines: pro se (pro per) litigants are held to lessstringent pleading standards than admitted or licensed bar attorneys. Regardless of thedeficiencies in their pleadings, pro se litigants are entitled to the opportunity to submitevidence in support of their claims.

Platsky v. C.I.A., 953 f.2d. 25; In re Platsky: court errs if court dismisses the pro se (Proper) litigant without instruction of how pleadings are deficient and how to repair pleadings.

Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000); In re Anastasoff: litigants'constitutional (guaranteed) rights are violated when courts depart from precedent whereparties are similarly situated.

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed2nd 240; Pucket v. Cox, 456 2nd 233. Pro se pleadings are to be considered without regardto technicality; pro se litigants' pleadings are not to be held to the same high standards ofperfection as lawyers.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938); "Pleadings are intended to serve asa means of arriving at fair and just settlements of controversies between litigants. Theyshould not raise barriers which prevent the achievement of that end. Proper pleading isimportant, but its importance consists in its effectiveness as a means to accomplish the endof a just judgment."

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Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982); "Due to sloth, inattention or desireto seize tactical advantage, lawyers have long engaged in dilatory practices ... the glacialpace of much litigation breeds frustration with the Federal Courts and ultimately, disrespectfor the law."

Sherar v. Cullen, 481 F. 2d 946 (1973); "There can be no sanction or penalty imposedupon one because of his exercise of Constitutional Rights."

C. REASONABLE ACCOMMODATIONS



10. The California Fair Employment and Housing Act is to be “construed liberally” and

is not intended to repeal other anti-discriminatory measures “unless those provisions provide less

protection to the enumerated classes of persons ...” (§ 12933, subd. (a).) Section 12955.6 reinforces

the broad scope of FEHA by providing that nothing in FEHA provisions “shall be construed to

afford to the [protected classes] fewer rights or remedies than the federal Fair Housing

Amendments Act of 1988 [FHA] ... and its implementing regulations ..., or state law relating to fair

employment and housing as it existed prior to the effective date of this section ... This part may be

construed to afford greater rights and remedies to an aggrieved person than those afforded by

federal law and other state laws.” (Also see Konig v. Fair Employment & Housing Com. (2002)

28 Cal.4th 743, 750.) The FHAA at §§ 3607 through 3619 uses the term “handicap” instead of the

term “disabled.” Both terms are interchangeable and have identical meanings (Bragdon v. Abbott,

524 U.S. 624, 631 (1998).) The 1988 Amended FHAA at § 804(f)(2)(A) states that it is unlawful

“[t]o discriminate against any person in the terms, conditions, or privileges ... because of a

handicap of ... that person.”

11. “FEHA in the housing area is thus intended to conform to the general requirements of

federal law in the area and may provide greater protection against discrimination.” (Brown v. Smith

(1997) 55 Cal.App.4th 767, 780.). In other words, the FHAA provides a minimum level of

protection that FEHA may exceed. Courts often look to cases construing FHAA, the Rehabilitation

Act of 1973, and the Americans for Disability Act of 1990 when interpreting FEHA. (Spitzer v.

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5Cross-Complainant Mr. Baldwin admitted at ¶ 17 of their “ANSWER TO PLAINTIFF’S COMPLAINT”

to operating “... professional and administrative professions ... permitted by applicable governmental ordinances”

out of their Lot since July/August of 1990 (See ¶¶ 10 through 12 above) because of Mrs. Baldwin’s disability and

need of 24/7 care.

6“[D]iscrimination includes ...the refusal to permit, at the expense of the handicapped person, reasonablemodifications of existing premises occupied or to be occupied by such person if such modification may be necessaryto afford such person full enjoyment of the premises ...” 42 U.S.C. 3604(f)(3)(A).

7The Code of Federal Regulations - Title 24 - Section 100.201 defines "Major Life Activities" functions as

caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Other Federal statutes have broader definitions to include physical or mental impairment that substantially limits

one or more major life activities but does not include current illegal use of, or addiction to a controlled substance, or

being a transvestite.

8 24 CFR § 100.204(a) makes it clear that the obligation to reasonable accommodations extends to “publicand common use areas.”


Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384.) Similarly, principles at issue in cases of

employment discrimination 5 are often applied in housing discrimination cases.

12. Unlawful housing discrimination 6 under FEHA includes the “refusal to make

reasonable accommodations in rules, policies, practices, or services when those accommodations

may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” (§

12927, subd. (c) (1)). Multiple Sclerosis as a disability that falls within the purview of this

provision and, at the time of this litigation, included “[a] physical or mental impairment that

substantially limits one or more of a person’s major life activities.” (Stats. 1992, ch. 182, § 10, P.

919.)

D. MAJOR LIFE ACTIVITIES and DISCRIMINATION



14. “Major life activities” 7 is to be broadly construed, and includes “physical, mental, and

social activities [e.g.; attending and participating in all HOA open meetings and enjoyment

at common area 8 functions] and working.” (§ 12926, subd. (I)(1)(C); See Toyota Motor

Manufacturing v. Williams, 534 U.S. 184 (2002).) The Cross-Defendant HOA published a June

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9 24 CFR § 100.65(b) prohibits the denying or limiting the use of services or facilities based on a person’s

disability.


2007 newsletter in which they blatantly and slanderously stated “Baldwin filed a claim last year

with the federal housing authority claiming that the ... Common Area and Pools are not accessible

to handicapped people. ... We [the HOA board] do not believe that our common area pools are

subject to the Fair Employment and Housing Authority and we will act accordingly ... Can you

imagine the cost necessary to make our common area wheelchair accessible?” 9 (See 42 U.S.C.A.

§ 12181(9)). Cross-Complainants are informed and believe and therefore allege that this June 2007

newsletter was written entirely by Mr. GIFFORD D. MASSEY (hereinafter “Massey”), just one

month earlier elected to the Sunrise Homeowners Association board of directors. The FHA Act at

42 U.S.C. § 3617 prohibits retaliation against a person who exercises their right to a reasonable

accommodation.

15. In order to establish discrimination based on a refusal to provide “reasonable

accommodations,” courts have determined that a party (i.e.; Cross-Complainant Mrs. Baldwin)

must establish that he/she:

(1) suffers from a disability as defined in 42 U.S.C. § 3604(f)(3)(B); (2) the discriminating party (i.e.; the HOA) knew of, or should have known of, thedisability; (3) accommodation is necessary to afford an equal opportunity to use and enjoy thedwelling (See Smith & Lee Assocs v. City of Taylor, 102 F.3d 781, 795 (6th Cir.1996); and (4) the discriminating party refuses to make [or allow] this accommodation. (See§ 12927 (C); Giebeler v. M & B Associates (9th Cir. 2003) 343 F.3d 1143, 1147;Janush v. Charities Housing Development Corp. (N.D.Cal. 2000) 169 F.Supp.2d1133,1135 (Janush); United States v. California Home Management Co., 107 F.3rd1374, 1390 (9th Cir. 1997); Schantz v. The Village Apartments, 998 F. Supp. 784,791 (E.D. Mich. 1998); 994 F. Supp. At 1255.)

16. Mrs. Baldwin’s mobility impairments and progressive severe disabilities have been

readily apparent and observable by Cross-Defendant boards of directors since early August 1990

as set out in “I. FACTUAL ALLEGATIONS” at ¶¶ 49 through 72 below, et seq, to present. Two

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10Dr. Gary Solomon, psychology professor, College of Southern Nevada, Las Vegas, addressed what he has

designated as the “HOA Syndrome”, a form of PTSD, a real medical condition causing the emotional, mental and

physical health of HOA homeowners to be jeopardized. These conditions include stress, anger, fear and paranoia.


very recent board members live directly across the street from Mrs. Baldwin. At times, Mrs.

Baldwin states that she ‘feels so debilitated that she is just barely staying alive 10 day by day’

because of the HOA.

17. Neither the United States Department of Housing and Urban Development or the FHA

Act require that a “reasonable accommodation” or “reasonable modification” request be made in

a particular manner or at a particular time. The request may be made verbally. A person with a

disability need not personally make the reasonable accommodation request; the request can be

made by a family member or someone else who is acting on his/her behalf. An individual making

a reasonable accommodation request does not need to mention HUD, the FHA Act, or use the

words "reasonable accommodation. However, the requester must make the request in such a manner

that a reasonable person would understand it to be a request for an exception, change, or adjustment

to a rule, policy, practice, or service because of a legal disability. Both of Cross-Complainants’

August 8, 2007 and September 4, 2007 letters to the HOA substantially met this requirement.

E. REASONABLE MODIFICATIONS



19. A "reasonable modification" is a structural, architectural or other physical change to

a unit, building, or common element in order to provide a handicapped or disabled person use or

equal access. Examples of reasonable modifications are wheelchair ramps, pool lifts, modifications

to doors to accommodate wheel chairs, grab bars, walkway or breeze way modifications or

coverings, etc. Associations cannot enforce any aspect of the master deed, on its face or as applied

to a particular situation, which violates federal law. Cf. 42 U.S.C. 3615 (“[A]ny law of a State, a

political subdivision, or other such jurisdiction that purports to require or permit any action that

would be a discriminatory housing practice under this subchapter shall to the extent be invalid.”);

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Gittleman v. Woodhaven Condominium Ass’n, Inc., 972 F. Supp 894 (D.N.J. 1997) (holding that

the New Jersey Condominiums Act did not exempt the defendant condominium association from

the accommodation requirement of the FHA).

F. DISCUSSION



21. The HOA was created on April 16, 1973 by filing Articles of Incorporation in Book 73-

04-06 at Page 579, County of Sacramento official records. The HOA development consists of 226

single family dwellings (hereinafter “Lots”) with an additional 4 Lots that make up the common

area swimming pool complex.

22. Beginning sometime in January 1991; the HOA retained the Law Firm of Berding and

Weil, 3240 Stone Valley Road, Suite 102, Alamo, California to completely restate the By-Laws and

CC&Rs. Many homeowner members took advantage of the chaos and made unauthorized non-

conforming architectural improvements to their Lots. The 1993 Amended Declaration of

Covenants, Conditions and Restriction were signed on September 28, 1993 (hereinafter the

“Declaration”) and recorded as Sacramento County official records on October 19, 1993 in Book

93-10-19 at Page 2589 (See 24 C.F.R. § 100.80(b)(3)).

23. In April 1995, by majority vote of the membership, the HOA board published and

distributed non-recorded, and thereby unenforceable by themself, “Association Rules and

Enforcement Procedures” as required by the 1993 Amended documents (See 10 Cal. Code Regs.

§ 2792.21(a) (association may formulate “rules of operation of the common areas and facilities

owned or controlled by the Association”)). The 1995 architectural rules and enforcement policies

were re completely revised and approved on April 9, 2001 by the membership, replacing the former

rules. The 2001 rules were not recorded and no “verified officer’s certificate” was created or filed

(See Costa Serena Owners Coalition v. Costa Serena Architectural Committee, 175 Cal. App. 4th

1175, 97 Cal. Rptr. 3d 170 (4th Dist. 2009)).

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11President of the HOA board of directors beginning in May 2007 through current.

12Secretary of the HOA board of directors from May 2006 through May 2007.

13President of the HOA board of directors from May 2006 through 2007; Vice-President from May 2007

through 2008.

14Vice-President of the HOA board of directors from May 2007 through present.


24. On October 28, 2003; a nine member HOA architectural control committee, chaired by

Mr. Jay Browne (deceased), a HOA board member, issued eight “Architectural Non-Conforming

Violation” Estoppel Certificates for eight non-conforming architectural improvement violations to

eight different homeowners that existed at the time the governing document amendment process

concluded in accordance with Ritchey v. Villa Nueva Condominium Assn., 81 Cal. App. 3d 688, 146

Cal. Rptr. 695 (1st Dist. 1978) and Taormina Theosophical Community, Inc. v. Silver, 140 Cal.

App. 3d 964, 190 Cal. Rptr. 38 (2d Dist. 1983).).

25. The Estoppel Certificate issuance stewed quietly in the background until it eventually

boiled over at the May 2005 Annual Meeting of the Members. The creation of a group of

disgruntled homeowners calling themselves the “Committee of Concerned Sunrise Homeowners”

(hereinafter “CCSH”), under the direction and leadership of Mr. Gifford D. Massey, as Facilitator

(and Chief Agitator), was created on June 23, 2005.

26. According to Massey’s December 1, 2005 published CCSH bulletin; the CCSH initially

consisted of “Gifford 11 & Marion Massey; Gayle Sarkissian 12; Jack & Asdghig Kitay; Ken

Hocutt 13; Kathleen & Norman Ma Gill 14; Christine & Barry O’Sullivan and many other

individuals too numerous to list on this short bulletin.” Ms. Jackie Allen was the CCSH secretary

until she disagreed with Massey’s personal attacks against Mr. Baldwin (see Footnote 19 at ¶ 139

below). Under the direction and leadership of Massey, the CCSH published and distributed

multiple other slanderous and untruthful newsletters between July 2005 through June 2006. These

CCSH newsletters lambasting the disabled and/or handicapped, thus creating an atmosphere of

contempt for handicapped and/or disabled people within the development, which still exists to this

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day.

27. At the afore mentioned 2005 Annual Meeting of the Members, Massey demanded that

the value of his property was being reduced because fellow homeowners such as Mr. NORMAN

J. MA GILL, II (hereinafter “Ma Gill”) were issued “open-ended” Estoppel Certificates that could

take years to correct and Massey wanted the estoppels corrected now! At the same 2005 meeting,

Ma Gill wanted his Estoppel squashed and he be allowed to retain the very non-conforming

violation that Massey disliked and wanted immediately corrected by the other seven homeowners.

28. For years the HOA membership had routinely complained about only partial use of the

common area even to the point of attempting to “disband the association.” Therefore, beginning

in June 2005, the HOA board proposed the possibility of obtaining government and private

GRANT money to enclose the common area pool and make the facility a year round usable facility.

The population of the HOA is aging and this was thought to be a wise and prudent investment for

all members. The HOA board would also construct a small but adequate clubhouse, etc. as funds

were available. The HOA could charge for allowing aqua-therapy, therefore reducing or

eliminating annual assessments. The HOA is allowed to make a profit and not lose its “non-profit

mutual benefit” status. The HOA had made profits from a snack stand at the common area for all

the years between 1991 and 1998 without losing its non-profit status. The HOA filed it’s annual

IRS Form 1120 and simply declared the profit, paying the appropriate taxes.

29. The HOA board hired a “professional grant underwriter” to search out if grant monies

were available and at what cost to the HOA. It was later discovered that grant money was available

and the grantees requested in exchange that water physical therapy be allowed at the pool three

days a week, two hours per day, and the HOA could charge “use fees” to the participants. The

CCSH immediately began a one year reign of terror against the HOA board and published multiple

derogatory, offensive, and unfavorable articles against the disabled and/or handicapped, causing

a mis-information campaign to be circulated throughout the HOA.

30. Cross-Complainants are informed and believe and therefore allege that sometime

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around August-September 2005, a conspiracy to disgrace, humiliate and drive Mr. Baldwin from

the HOA board began. Prolonged agitation of Massey along with pledged financial support of the

CCSH caused Ma Gill, an initial CCSH member, to close ranks with Massey and file his September

14, 2005 law suit against the Sunrise Homeowners Association, Inc., including Charles F. Baldwin

[as he was the president of the board of directors]. None of the other four directors were named

in the law suit. (See NORMAN J. MA GILL, II v SUNRISE HOMEOWNERS ASSOCIATION, a

nonprofit corporation, CHARLES BALDWIN, and DOES 1-25, Sacramento County Superior Court

Case No. 05AS04091).

31. The crux of Ma Gill’s law suit was to have the Court declare defendant Mr. Baldwin

an illegal director, thereby invalidating by reason of Mr. Baldwin’s Court ordered alleged unlawful

tenure as a director of the HOA, and have Ma Gill’s Estoppel Certificate vacated.

32. Massey has at all times since the April 2007 Annual Meeting of the Members been the

HOA president while Ma Gill has at all times since the April 2008 Annual Meeting of the Members

been the HOA vice-president. These individuals caused the September 18, 2009 vexatious and

egregious law suit to be filed against Cross-Complainants in the first place.

G. PARTIES



34. Cross-Complainants, CHARLES F. BALDWIN and CAROL C. BALDWIN are natural

individuals who at all times relevant hereto maintained a residence within Sacramento County,

State of California. At the time of the Summons Case 34-2009-00058393, filed on September 18,

2009, by Cross-Defendant, SUNRISE HOMEOWNERS ASSOCIATION INC., a California

nonprofit mutual benefit corporation against Cross-Complainants, CHARLES F. BALDWIN and

CAROL C. BALDWIN; CHARLES F. BALDWIN and CAROL C. BALDWIN as Trustees of the

CHARLES F. & CAROL C. BALDWIN LIVING TRUST, and the Baldwins were the record co-

owners of Lot 115 located at 8032 Red Pine Court, Citrus Heights, California 95610 (hereinafter

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the “Home”).

35. Furthermore, at all times relevant to this Cross-Complaint, Cross-Complainant, CAROL

C. BALDWIN, is a 100% military service-connected legally disabled person by reason of a

physical disability which limits her major life activity, including, but not limited to, walking,

eating, drinking, bathing and clothing herself, etc. Mrs. Baldwin, who at all times since October

25, 1995 has been a para-legal working with her husband, severely suffers from advanced chronic

progressive Multiple Sclerosis (hereinafter “MS”), first diagnosed in February 1986, with

symptoms of MS dating back to December 1979, a condition which causes progressive weakness

and impaired sensory and mobility in the arms and legs. Mrs. Baldwin is tri-plegic, thus mobility

impaired requiring the use of a battery powered wheelchair for mobility. As such, Mrs. Baldwin

is a person with a legal “physical disability” within the meaning of Government Code § 12926,

subdivision (k) and Civil Code § 54.1 requiring 24/7 care. Mrs. Baldwin’s legal disability requires

Mr. Baldwin livelihood as a professional legal services “word processing” business, utilizing his

wife’s para-legal licensing, to be home based, operating pursuant to HOA CC&Rs and City of

Citrus Heights Code, Business License Number 0000010876 (See Brown v. Smith, supra, 55

Cal.App.4th at p. 782.).

36. In addition, at all times relevant to this Cross-Complaint, Cross-Complainant,

CHARLES F. BALDWIN, is a military retired, legally disabled person by reason of a non military

service-connected physical disability which limits his major life activity, including, but not limited

to, running, jogging, and prolonged walking. Mr. Baldwin suffers as a result of partial removal of

his right lung due to the result of a primary spontaneous pneumothorax (PSP) in March 1998 which

required micro surgery to remove several “blebs,” repair the lung through a pleurodesis, followed

by fourteen days of intensive care unit medical treatment, now dictating a CPAP machine for

assistive breathing. This is a physical condition which causes hypoxia, or chronic tiredness and

inability to sustain extended physical movement. As a result, Mr. Baldwin is a person with a legal

“physical disability” within the meaning of Government Code § 12926, subdivision (k) and Civil

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Code 54.1 limiting his major life activities. At all times since July 2, 2010, Mr. Baldwin has been

a licensed Sacramento County “legal document assistant,” replacing his wife’s para-legal oversight

of their home based professional business.

37. Cross-Defendant SUNRISE HOMEOWNERS ASSOCIATION, INC. (hereinafter the

“HOA”), is now, and at all times relevant to this Cross Complaint has been, a California nonprofit

mutual benefit corporation whose principal place of business has been within Sacramento County,

State of California. The HOA provides for the management and oversight of the HOA, a private

single family residential community consisting of 226 separate lots surrounding four lots for the

common area swimming pool complex. The HOA is un-gated, does not have a clubhouse or

community meeting facility of any manner, nor does it provide any additional amenities or services

to HOA membership except for the maintenance and upkeep of the common area. The HOA has

never owned, rented or occupied a business office, the HOA does not own or maintain any streets,

sidewalks, parks, playgrounds, pathways, out buildings or any other structure located within or

outside the development.

38. The true names, capacities and identities of each of the Cross-Defendant herein

designated as DOES 1 through 250, inclusive are unknown at this time to Cross-Complainants who

therefore sues said Cross-Defendants by such fictitious names and therefore Cross-Complainants

will ask leave of the Court to insert the true names, capacities and identities of said Cross-

Defendant DOES 1 through 250 when the same have been ascertained together with appropriate

charging allegations pursuant to Civil Code § 474.

39. Cross-Complainants are informed and believe and thereon allege that at all times

relevant herein, each of the Cross-Defendants was the agent, servant, employee, and/or

representative of each and every remaining Cross-Defendant and was, in doing the things

complained of herein, acting within the course and scope of such agency, service, employment,

and/or representation, and that each and every Cross-Defendant herein is jointly and severally

responsible and liable to Cross-Complainants for the damages hereinafter alleged.

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40. Cross-Complainants are informed and believe and thereon allege that each of the Cross-

Defendants designated herein as a DOE are legally responsible in some manner for the

circumstances and happenings herein referred to and caused, and or is responsible for harm

proximately caused thereby, and Cross-Complainants will ask leave to amend this Cross-Complaint

to show Cross-Defendant’s responsibility when the same has been ascertained and to include

appropriate charging allegations.

41. Cross-Complainants refer to the Complaint filed in this action and incorporate said

Complaint by reference except they deny each and every, all and singular, generally and

specifically, allegations contained therein insofar as said allegations relate to or refers to Cross-

Complainants.

42. Cross-Complainants allege the incidents referred to occurred as a direct, proximate and

sole cause of Cross-Defendant’s wrongful conduct in and about the matters alleged in said

Complaint.

43. Were it determined that Cross-Defendants are by virtue of the allegation of Cross-

Complainants liable to Cross-Complainants for any of the harm alleged in said Cross-Complaint,

Cross-Complainants are entitled to contribution and total or partial indemnity from Cross-

Defendants, and each of them, for their proportion of said harm caused by such unlawful conduct

of said Cross-Defendant; said contribution to be determined by the proportional degree of

allegation of fault attributable to Cross-Defendant, and each of them. Cross-Complainants allege

an actual controversy exists between them and Cross-Defendant, and each of them, deny that they

have such obligation.

44. Cross-Defendant, SUNRISE HOMEOWNERS ASSOCIATION, INC., is a California

corporation that purports to be a homeowners association, created by the filing of Articles of

Incorporation (hereinafter “Articles”) in 1973, being governed by the 1993 Amended By-Laws

(hereinafter “By-Laws”) and the 1993 Amended Declaration of Covenants, Conditions and

Restrictions (hereinafter "CC&Rs") which charged itself with managing, maintaining and

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controlling the common area of the development, as performed by and at the direction of the five

member voluntary HOA board. The HOA also has unrecorded, and therefore unenforceable, HOA

parking rules and policies (See Civil Code §§ 1357.100-1357.150.). Restrictions contained within

the “recorded declaration” are enforceable as equitable servitudes unless they are unreasonable,

and they bind all owners of separate interest in the development (See Civil Code § 1354(a);

Nahrstedt v. Lakeside Village Condominimum Ass’n (1994) 8 C4th 361, 33 CR2d 63.). Therefore,

Cross-Defendant SUNRISE HOMEOWNERS ASSOCIATION, INC. was an “owner” of housing

accommodations pursuant to California Government Code § 12927, subdivision (e) and 12924, and

“any person” within the meaning of California Government Code § 12955, subdivisions (a) and (d).

Cross-Defendant SUNRISE HOMEOWNERS ASSOCIATION, INC., is also a “business

establishment” as defined by Civil Code § 51.

45. Cross-Complainants are informed and believe and therefore allege that at all times since

the April 24, 2006 Annual Meeting of the Members; the HOA board violates Government Code §

12956.1(b)(1) in that they do not place a cover page or stamp on the first page of the governing

documents they distribute, in at least 14 point boldface type, with the following notice:

“If this document contains any restrictions based on race, color, religion, sex, familialstatus, marital status, disability, national origin, or ancestry, that restriction violates stateand federal fair housing laws and is void, and may be removed pursuant to Section 12956.1of the Government Code. Lawful restrictions under state and federal law on the age of theoccupants in senior housing or housing for older person shall not be construed asrestrictions based on familial status.”

H. JURISDICTION AND VENUE



47. Venue is proper in this Court pursuant to California Government Code § 12989,

subdivision (c), in that Sacramento County is the county in this state in which the unlawful

practices, alleged herein, were committed; in which the records relevant to the practices are

maintained and administered and, in which the Baldwins reside.

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48. The harm complained in this Cross-Complaint occurred in Sacramento County with

respect to a housing accommodation and a business establishment located in Sacramento County,

State of California.

I. FACTUAL ALLEGATIONS



50. Cross-Complainants are informed and believe and therefore allege that at all times

since the April 24, 2006 Annual Meeting of the Members, all HOA Cross-Defendant HOA board

of director members have been former members of a dissident group calling themselves the

CCSH and have allowed their prejudices against the Baldwins to rule their decisions.

51. Cross-Complainants are informed and believe and therefore allege that all current

HOA board members since April 24, 2006, with the exception of Ms. Joan Koponen and Ms.

Giovanna Cohen, have been at all times subservient to the will of Massey. Former CCSH

members also control the HOA architectural control committee, pool committee, etc. and are

prejudiced from “eating the fruit of the same tree.”

52. In a July 17, 2006 bulletin Cross-Defendants informed the HOA membership that all

future monthly “open meetings” would be held at the common area until further notice.

53. Cross-Complainants are informed and believe and therefore allege that the newly

elected HOA board deliberately moved the monthly “open meeting” of the board from an air

conditioned and ADA accessible church facility to the 100+ degree common area pool side in an

effort to deliberately keep out the Baldwins and other disabled and/or handicapped homeowner

members from attending.

54. Therefore, on July 17, 2006, the Baldwins left a message on the HOA answering

machine (no reply), then quickly composed and mailed a certified letter to Cross-Defendant

demanding that the monthly “open meetings” of the HOA board be relocated back to a location

where all HOA members, regardless of their physical conditions, could attend in comfort.

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55. Mr. Leslie D. Smith, a fellow disabled HOA homeowner member, on July 25, 2006

also mailed a complaint with the HOA board about the unexpected and sudden move to an 104

degree pool side “open air” meeting.

56. Cross-Defendant’s legal counsel, Angius & Terry, LLP, replied through a July 21,

2006 certified letter titled “Demand for ADA Accessible Meetings” which reads in part “The

Association is a purely private organization and which means there is no right of public access

to its meetings”, being signed by one TED LINDSTROM.

57. Upon receiving the HOA’s reply, the Baldwins filed an electronic on-line Department

of Fair Employment and Housing (hereinafter “auguring”) complaint, later identified as case #

H200607-Q-0247-00-ph / HUD case # 09-07-0528-8.

58. The DFEH complaint was properly served on Cross-Defendant. Cross-Defendant

corrected the DFEH complaint by relocating HOA monthly “open meetings” back into the ADA

friendly Friends Church library in November 20, 2006. DFEH completed their investigation to

their satisfaction and therefore closed the complaint in January 2007.

59. Cross-Complainants notified a “reasonable accommodation” necessity in an August

8, 2007 certified letter to Cross-Defendant following the instructions contained within Cross-

Defendant’s legal counsel’s July 21, 2006 letter regarding the notification of the HOA by

providing detailed, full color plans and pictures of the “reasonable accommodation.”

60. Cross-Complainants submitted the same identical plans to the City of Citrus Heights

(hereinafter the “City”) Building and Safety Division on August 10, 2007 for approval.

61. Cross-Defendant mailed a first class letter dated August 27, 2007 back to Cross-

Complainants auguring about the “reasonable accommodations” request and/or notification

without indicating any approval or denial, or containing any request for verbal discussion(s)

concerning the reasonable accommodation project.

62. Cross-Complainants are informed and believe and therefore allege that Massey alone

went to the City Building and Safety Division to interfere and sabotage Cross-Complainants’

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15Joan Pentinmaki was the 2nd secretary for the CCSH group headed by Gifford D. Massey, replacing Ms.

Jackie Allen (see ¶ 98 – footnote 14 below).


“reasonable accommodation” project, not knowing that the initial plans did not comply with City

“set back” rules as admitted in Massey’s January 8, 2009 letter, on page 1, last paragraph.

63. Cross-Complainants then mailed a second certified letter on September 4, 2007 to

Cross-Defendants with new plans and specifications regarding a “reasonable accommodations”

awning system that the City would approve.

64. Cross-Complainants scheduled to pick up the approved building permit on September

7, 2007. On that same morning, the installers, who weren’t expected for another two days,

showed up ready to install the electric powered retractable awning. Mr. Baldwin allowed the

installers to work while he went to pick up the building permit only to discover that Massey had

harassed the planners so much that they decided not to issue the permit until the situation defused

itself. The City of Citrus Heights finally issued the Building Permit (without any fines or

penalties) for the awning on November 3, 2009 absent of any further interferences from Massey

or the HOA.

65. Cross-Complainants had no contact with the HOA until Cross-Complainants received

a letter purporting to be from the HOA dated February 12, 2008 and signed by a “Joan

Pentinmaki, Secretary for David Lawrence. 15 ”, a person with no known authority to do so.

66. All correspondence regarding “reasonable accommodations” and/or architectural

violations ceased until Cross-Defendant Massey mailed a “Notice of Non-Compliance Hearing”

letter dated November 29, 2008, postmarked on December 1, 2008, and delivered to Cross-

Complainants at 12:58 pm on December 2, 2008, verifiable by USPS records. The HOA

executive session was scheduled for December 11, 2008 at 7:40 pm, just nine days away (See

Corporations Code § 7341(d) and Civil Code § 1363(h)).

67. Cross-Complainants replied to Cross-Defendant via certified mail informing Cross-

Defendant that their letter violated Cross-Complainants’ “due process” by not complying with

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mandatory time requirements clearly detailed in Corporations Code § 7341(d) and Civil Code §

1363(h). Cross-Defendant ignored the “due process” violation and held the executive meeting

anyway. Cross-Complainants are informed and believe and therefore allege that Cross-Defendant

has engaged in, and continue to demonstrate that they will continue to engage in, the pattern and

practice of unlawful “due process” and housing discrimination until they are enjoined by a

Court Order, pursuant to the police power granted by Government Code §§ 12920 and 12920.5,

and pursuant to section 12989.2(a), from failing or refusing to comply with the mandates of the

FEHA, section 12900, et seq.

68. Cross-Complainants requested Internal Dispute Resolution “meet and confer” with

Cross-Defendant in two separate certified mailings but the HOA refused. This is in direct

violation of Civil Code § 1363.840. Cross-Complainants later agreed on three separate occasions

to participate in mediation with Cross-Defendant but Massey, through HOA legal counsel,

refused every time! (See Civil Code §§1863.810, 1369.510.).

69. Cross-Complainants are informed and believe and therefore allege that Massey and

Ma Gill lied to the other three board members at a monthly meeting of the board. It was first hand

reported by former board member Geovanna Cohen to Mr. Baldwin that Massey and Ma Gill told

Ms. Cohen, with board members Joan Koponen and Roger Hall also present, that ‘the association

had to dismiss Angius & Terry LLP and find new legal counsel because the Baldwins are also

represented by Angius & Terry LLP.’ This outright lie was intended only to try and sue the

Baldwins into submission. Cross-Complainants are informed and believe and therefore allege that

this was a conspiracy that Angius & Terry LLP did not want to participate in.

70. Cross-Complainants further believe and allege that Massey and Ma Gill conspired

to litigate the Baldwins into submission, hoping to force the Baldwins to sell their home and

move out of the development. Cross-Complainants are informed and believe and therefore allege

that Massey and Ma Gill have as of this First Amended Cross Complaint spent more than $50,000

of HOA funds (that’s 73% of all annual revenues) litigating this frivolous, vexatious and

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16Massey and Ma Gill have depleted the Reserve Funds as well as spent all Operational Funds, which in

turn caused the board to suspend the operation of the common area swimming pool one month earlier than normal.


egregious law suit against the Baldwins. Cross-Complainants are informed and believe and

therefore allege that lack of money 16 is the reason Cross-Complainants’ Motion to File a

Compulsory Cross Complaint went unopposed. HOA board president Massey just announced

on Thursday, October 21, 2010, of its’ intent to raise “assessments” for 2011 by the maximum

amount allowed and levy a 20% “special assessment” against the membership to pay for their

misguided law suit.

71. Cross-Defendant has ignored each and every attempt by Cross-Complainants to bring

this impasse to a just, speedy, peaceful and inexpensive resolution to this matter thereby saving

the State’s and this Court’s valuable and limited resources.

72. Cross-Complainants are left with no choice but to defend themselves against this

vexatious, egregious and discriminatory law suit against the Baldwins and therefore filed a

second DFEH complaint, numbered # H200910-Q-0079-00-pr / HUD case # 09-10-0223-8.

J. STATEMENT OF DAMAGES



74. As a direct and proximate cause of the unlawful housing practices of Cross-

Defendant, as herein alleged, CAROL C. BALDWIN and CHARLES F. BALDWIN suffered the

following damages in an amount to be proven at the time of trial:

a. The Baldwins have been deprived of their civil rights, under section 12921,

subdivision (b), inter alia, to enjoy the opportunity to hold housing without discrimination

because of disability.

b. The Baldwins suffered, and continue to suffer, out-of-pocket losses and

potential future damages including, but not limited to, angry feelings, tiredness and fatigue,

anxiousness, on-edge or irritability, unhappiness in their own home, depression and sadness,

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worrisome, hopelessness, over and/or under eating, sleeping disorders/nightmares, fear of going

to their mailbox, paranoia, loss of identity, stressed out, fear of car being ticketed or towed, body

aches and pains, intestinal problems/acid reflux, memory loss, obsessive rumination, TMJ/teeth

grinding, hyper vigilance, restlessness, sexual dysfunction, loss of enjoyment, etc., all because

of the selected enforcement and continued harassment by the HOA board (see Footnote 10 at ¶

16 above).

c. The Baldwins suffered, and continue to suffer, emotional injuries, inter alia,

emotional distress, anxiety, frustration, humiliation, and damage to their dignity and self-esteem,

all affecting their personal integrity. Cross-Complainant Mrs. Baldwin has already spent 29 days

during two separate hospitalizations at the VA Center for Rehabilitation and Extended Care

(“CREC”) since January 1, 2010 for “respite” due to emotional distress caused by the HOA’s

policy of “Harass the neighbors long enough, keep them in line and set them up with fine after

fine...”

75. The conduct of Cross-Defendant, as herein alleged, was wilful, malicious, oppressive,

fraudulent, wanton, grossly reckless and taken in conscious disregard of the rights of the

Baldwins to hold housing without discrimination because of disability. The Cross-Defendant

willfully and intentionally, and without just cause, deprived Mrs. Baldwin of her civil rights as

a person seeking housing without discrimination under the laws of the State of California even

though Cross-Defendant knew or should have known of Mrs. Baldwin’s disabilities, and thus

entitling Mrs. Baldwin to an award of exemplary or punitive damages, as well as punitive

damages resulting from Cross-Defendant’s outrageous and egregious behavior (Civil Code §

3294).

FIRST CAUSE OF ACTIONDisability Discrimination

(Violation of Government Code § 12955(a), as to all Cross-Defendants)



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77. Government Code § 12955(a), declares it an unlawful practice, inter alia, for the

owner of any housing accommodation to discriminate against or harass any person because of the

disability of that person.

78. The acts and conduct of the Cross-Defendant, as described above, constitute unlawful

“discrimination,” as defined in section 12927, in violation of section 12955(a), in that Cross-

Defendant demands removal of an electric powered retractable awning necessary for the pre-

cooling of Mrs. Baldwin’s wheelchair adapted mini-van during times of heat and shelter during

inclement weather conditions, aiding Mrs. Baldwin in the ingress and egress of, to and from her

home to her mini-van. The mini-van cannot be parked within the garage because it is 5½ inches

longer than the depth of the garage. Cross-Defendant is demanding the awning’s removal,

allowing for no other “reasonable accommodation” means or method to enjoy her dwelling.

“[N]eccessity requires at a minimum the showing that the desired accommodation [or

modification] will affirmatively enhance a disabled [person’s] quality of life by ameliorating

the effects of the disability.” (Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995))

79. Cross-Defendant, by refusing to reasonably accommodate Mrs. Baldwin’s disability

and by their refusal to comply with the law when requested, have engaged in, and demonstrate

they will continue to engage in, the pattern and unlawful practice of housing discrimination

described herein unless and until the Court shall enjoin these parties by Court Order, pursuant to

§ 12989.2(a), from failing or refusing to comply with the mandates of the FEHA, § 12900, et seq.

80. The Cross-Defendant’s unlawful housing policies and practices, as described above,

are not necessary to the operation of the Sunrise Homeowners Association and do not effectively

carry out the significant business need they are alleged to serve.

SECOND CAUSE OF ACTIONDenial of Civil Rights - Unruh Civil Rights Act

(Government Code § 12955, subdivision (d), and Civil Code § 51,as to all Cross-Defendants)

81. Cross-Complainants realleges, and incorporates by reference herein, each and every


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82. Section 12955(d), provides that it is unlawful for any person subject to the provisions

of Civil Code § 51, as that section applies to housing accommodations, to discriminate against

any person on the basis of, inter alia, disability.

83. Cross-Defendant’s acts and conduct, as described above, constitute unlawful

“discrimination” as defined in § 12927, in violation of § 12955(a), in that Cross-Defendant,

refused or failed to reasonably accommodate Mrs. Baldwin’s disability. Cross-Defendant forbade

the installation of the electric powered retractable awning, demanding its removal, and in addition

forbade Mrs. Baldwin from replacing the awning with any other means of shade or inclement

weather covering.




described herein unless and until the Court shall enjoin these parties by Court Order, pursuant

to the police power granted by §§ 12920 and 12920.5, and pursuant to § 12989.2(a), from failing

or refusing to comply with the mandates of the FEHA, § 12900, et seq.

85. The Cross-Defendant’s unlawful housing policies and practices, as described above,

are not necessary to the operation of the Sunrise Homeowners Association and do not effectively

carry out the significant business need they are alleged to serve (See HUD v. Ocean Sands, Inc.,

No HUD DALJ 04-90-0231-1 (HUD Office of Admin. Law Judges 9-3-93.).

THIRD CAUSE OF ACTIONDenial of Civil Rights

(Government Code § 12948, subdivision (d), and Civil Code § 54.1, as to all Cross-Defendants)



87. Section 12948 provides that it is unlawful for any person subject to the provisions of

Civil Code § 54.1, as that section applies to housing accommodations, to discriminate against any

person on the basis of, inter alia, disability. Specifically, Civil Code § 54.1(b)(1), states that

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“Individuals with disabilities shall be entitled to full and equal access ... to all housing

accommodations offered for ... compensation ...” 24 CFR § 100.65(b) prohibits the denying or

limiting the use of services or facilities based on a person’s disability. Moreover, Civil Code §

54.1(b)(3), states that “Any person renting, leasing, or otherwise providing real property for

compensation shall not refuse to make reasonable accommodations in rules, policies, practices,

or services, when those accommodations may be necessary to afford individuals with a disability

equal opportunity to use and enjoy the premises.”

88. Furthermore, Civil Code § 1360(a)(2)(D), more commonly referred to as a part of

California’s Davis-Sterling Act, provides in part “... The Association shall not deny approval of

the proposed modification under this paragraph without good cause.”

89. Cross-Defendant’s conduct, as described above, constitutes a violation of Civil Code

§ 54.1(b)(1) and (b)(3), as incorporated into the FEHA, § 12948, as discrimination on the basis

of disability when they fail to reasonable accommodate Mrs. Baldwin’s disability.




described herein unless and until the Court shall enjoin these parties by Court Order, pursuant

to the police power granted by §§ 12920 and 12920.5, and pursuant to § 12989.2(a), from failing

or refusing to comply with the mandates of the FEHA, § 12900, et seq.

FOURTH CAUSE OF ACTIONBreach of the Covenant of Good Faith and Fair Dealing

(As to all Cross-Defendants)91. Cross-Complainants realleges, and incorporate by reference herein, each and every


92. California law implies that every contract has an implied covenant of good faith and

fair dealing whereby parties to a contract must act in good faith in the performance of the contract

so as to not deprive another party to the contract of its benefits and/or protection (See April

Enters., Inc. v. KTTV, 147 Cal. App. 3d 805, 816, 195 Cal. Rptr. 421, 425 (1983); Harm v.

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Frasher, 181 Cal. App. 2d 405, 417, 5 Cal. Rptr. 367, 374 (1960).) Furthermore, directors owe

a fiduciary duty, which is a duty of undivided loyalty to the owners association, and may not

make decisions for the association that benefit their own interests at the expense of the

association and its members. (See Raven’s Cove Townhomes, Inc. v. Knuppe Development Co.,

114 Cal. App. 3d 783 Cal. Rptr. 334 (1st Dist. 1981).).

93. Cross-Defendant breached the covenant of Good Faith and Fair Dealing implicit in

the HOA's by-laws, rules, declarations, deeds and CC&Rs as aforesaid by not uniformly

enforcing the HOA's by-laws, rules, declarations, deeds and CC&Rs.

94. Cross-Defendant alleged at ¶¶¶ 11 and 28 through 44 of their Complaint that Cross-

Complainants violated Section 4.6 “Restriction on Businesses”, 4.15 “Signs.” and 4.16 “Vehicles

and Parking” of the HOA’s recorded Declarations and/or unrecorded, and therefore

unenforceable, “Parking Rules”, which in fact do not exists (See ¶ 23 above).

95. However, Cross-Defendant HOA board allows more than forty home based

businesses, which includes but is not limited to, three general contractors, two licensed day care

centers, one insurance agency, one private detective, a holistic medical provider, and repossession

operation; to openly operate other than “... professional and administrative professions” out of

their Lots. Cross-Defendants selectively enforce the HOA's by-laws, rules, declarations, deeds

and CC&Rs and thereby breach the covenant of Good Faith and Fair Dealing by the HOA board.

96. Cross-Defendant, by refusing to act with Good Faith and Fair Dealing toward Cross-

Complainants, have engaged in, and demonstrate they will continue to engage in, the pattern and

unlawful practice of housing discrimination described herein unless and until the Court shall

enjoin these parties by Court Order, pursuant to the police power granted by §§ 12920 and

12920.5, and pursuant to § 12989.2(a), from failing or refusing to comply with the mandates of

the FEHA, § 12900, et seq.

97. The breaches by the HOA of the covenant of Good Faith and Fair Dealing as

aforesaid were done maliciously, oppressively, and in conscious disregard of the Baldwins’ rights

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17See Siegel, The Constitution and Private Government: Toward the Recognition of Constitutional Rights

in Private Residential Communities Fifty Years After Marsh v. Alabama, 6 Wm. & Mary Bill Rts. J. 461, 493-94

(1998); Rosenberry, The Application of the Federal and State Constitutions to Condominiums, Cooperatives, and

Planned Developments, 19 Real. Prop., Prob & Tr. J. 1 (1984).


so as to entitle the Baldwins to an award of exemplary damages as against the Cross-Defendant,

according to proof, including reasonable fees and court costs (See Quigley v. Pet, Inc., 162 Cal.

App. 3d 877, 887-88, 208 Cal. Rptr. 394,399-400 (1984). ).

FIFTH CAUSE OF ACTIONDenial of Due Process Constitutional Rights

(Civil Code § 1363(h) and Corporations Code § 7341(d), including Federal and Statestatutes as to all Cross-Defendants)



99. The efforts of Cross-Defendant, as aforesaid, were actions done in violation of the

Baldwins’ rights to due process as set forth in the Davis-Sterling Act as well as both California’s

and United States’ Constitutions.

100. Cross-Defendant is a quasi-governmental entity, a/k/a private governmental entity

of public interest, with its own governing documents, being empowered by the Sate of California

to govern over its subjects due predominantly to the authority granted the HOA by the

Davis-Stirling Act as set forth in California Civil Code § 1350, et seq (see “First Amended Cross-

Complaint” of CARMICHAEL CANTERBURY VILLAGE OWNERS ASSOCIATION v.

MICHAEL JOSEPH, Sacramento County Superior Court Case No. 34-2008-00013502 CL-OR-

CDS, ¶ 37 in its entirety 17 ).

101. Being such, a mini governmental with few checks and balances, the HOA has

always owed Charles F Baldwin, Carol C. Baldwin, and all other HOA members the obligation

to respect and to abide by their constitutional rights as set forth in the California and United

States Constitutions.

102. Civil Code § 1363.05(b) governs “executive sessions” of HOA board of directors and

declares that “executive sessions” are private sessions which homeowners are not allowed to

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attend. Executive sessions are provided for by statute so that boards can address issues which

involve privileged information or matters of a private nature:

“(b) Any member of the association may attend meetings of the board of directors of theassociation, except when the board adjourns to executive session to consider litigation,matters relating to the formation of contracts with third parties, member discipline,personnel matters, or to meet with a member, upon the member's request, regarding themember's payment of assessments, as specified in Section 1367 or 1367.1. The board ofdirectors of the association shall meet in executive session, if requested by a member whomay be subject to a fine, penalty, or other form of discipline, and the member shall beentitled to attend the executive session.”

103. Civil Code § 1363.05(c) allows HOA boards to meet in executive session apart from

an open meeting and can vote on matters which are then generally noted in the minutes of the

next open meeting (such as: the board discussed issues related to the pending mediation, legal

matters, disciplinary matters, etc.):

“(c) Any matter discussed in executive session shall be generally noted in the minutes ofthe immediately following meeting that is open to the entire membership.”(Emphasis added.)

104. The Uniform Common Interest Ownership Act of 1994 “(UCIOA”) at Section 3-116,

and more specifically California Civil Code § 1363(h) mandates that HOA boards of directors

must notify the association member in writing, by either personal delivery or first-class mail, at

a minimum of ten full twenty-four hour days prior to the executive session meeting:

“When the board of directors is to meet to consider or impose discipline upon a member,the board shall notify the member in writing, by either personal delivery or first-classmail, at least 10 days prior to the meeting. The notification shall contain, at a minimum,the date, time, and place of the meeting, the nature of the alleged violation for which amember may be disciplined, and a statement that the member has a right to attend andmay address the board at the meeting. The board of directors of the association shallmeet in executive session if requested by the member being disciplined. If the boardimposes discipline on a member, the board shall provide the member a writtennotification of the disciplinary action, by either personal delivery or first-class mail,within 15 days following the action. A disciplinary action shall not be effective againsta member unless the board fulfills the requirements of this subdivision.”

105. Corporations Code § 7341(d) requires HOA boards of directors to reasonably

calculate its method of delivery of any notification announcing a disciplinary executive session

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meeting to ensure that the minimum time notification of ten (10) full twenty-four hour (24) days

is strictly adhered to:

“Any notice required under this section may be given by any method reasonablycalculated to provide actual notice. Any notice given by mail must be given by first classor registered mail sent to the last address of the members shown on the corporation'srecords.” (Emphasis added.)

106. Cross-Defendant’s notification letter was dated November 29, 2008 and called for

an unwarranted and illegal “executive session” meeting between Cross-Defendant and Cross-

Complainants to be held at 8:30 PM on December 11, 2008 in the Friends Church library. Cross-

Defendants’ November 29, 2008 letter was not postmarked until December 1, 2008 and was not

delivered to Cross-Complainants until 12:58 PM on December 2, 2008. The Cross-Defendant’s

nine (9) days, seven (7) hours and thirty-two (32) minute notification before their “executive

session meeting” DOES not meet the ten full 24 hour day’s notification requirements of the

law (See 40 West 67th Street Corporation v. Pullman, 100 N.Y. 2d 147, 790, 1174 (2003)).

107. Cross-Defendant failed to “reasonably calculate to provide actual notice” to Cross-

Complainants ten (10) full days in advance. Therefore, Cross-Defendants’ “executive session”

was illegally conducted and Cross-Complainants were not required by law to attend the

December 2, 2008 executive meeting called by Cross-Defendant. Cross-Complainants notified

Cross-Defendant of their deficient “executive session” notification in a December 3, 2008

Certified mailing to Cross-Defendant as well as Cross-Defendant’s attorney, Baydaline &

Jacobsen LLP, being notified in a September 10, 2009 letter from the law office of Genevieve

Paras Repp, Esq., which read in part “... my clients have been denied their due process of law ...

by ... the Association’s faulty execution in their demand for an “Executive “Committee”... based

on lack of sufficient notification by mail.”

108. Cross-Defendants (1) intentionally and wilfully ignored Cross-Complainants’

December 3, 2008 letter, (2) conducted its “executive session” in abstention of Cross-

Complainants, (3) thereby violating Cross-Complainants’ right to the due process clause under

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the 14th Amendment of the State of California Constitution and the due process clauses under the

5th and 14th Amendments of the United States Constitution. Being a Private Governmental Entity

of Public Interest, the HOA must obey the law before it can expect its subjects to:

In re Winship, 397 U.S. 358, 382 (1970), (Black, J., dissenting) “...our Government mustproceed according to the ‘law of the land’ — that is, according to written constitutionaland statutory provisions.”

In re Ironwood Owners Ass’n IX v. Solomon 178 Cal. App. 3d 766, 772, 224 Cal. Rptr.18 (1986) the court wrote: “When a homeowners’ association seeks to enforce theprovisions of its CCRs to compel an act by one of its member owners, it is incumbentupon it to show that it has followed its own standards and procedures prior to pursuingsuch a remedy, that those procedures were fair and reasonable and that its substantivedecision was made in good faith, and is reasonable, not arbitrary or capricious.”

109. The continuing actions of Cross-Defendant, as aforesaid, and their arbitrary and

capricious application of the CC&Rs with the intent to harass, annoy and deprive the Baldwins

of the use and enjoyment of their home and related property rights, e.g.; use of the common area,

were pursued and accomplished with complete and total disregard of the Baldwins’ state and

federal rights to due process. Cross-Defendant, by refusing to protect Cross-Complainants’ due

process rights, have engaged in, and demonstrate they will continue to engage in, the pattern and





110. Cross-Defendant's actions in depriving the Baldwins of their constitutional rights

were done intentionally, maliciously, oppressively and in conscious disregard of the Baldwins’

rights such that Charles F. Baldwin and Carol C. Baldwin are entitled to an award of exemplary

damages in addition to actual damages suffered by the denial of said rights, according to proof,

including reasonable fees and court costs.

SIXTH CAUSE OF ACTIONBreach of Contract

(As to all Cross-Defendants)

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112. The HOA was and is always obligated to perform their responsibilities as officers

of the corporation in accordance with the HOA 1993 Amended By-Laws, 1993 Amended

Declaration of Covenants, Conditions & Restrictions (CC&Rs), other declarations, rules, policies,

amendments and deeds pertaining to the HOA and its members, which constitute a contract

between the HOA and its members.

113. The HOA was and is always obligated to perform in accordance with contractual

agreements, oral and written, made between HOA and any member of HOA, including those

contracts termed Architectural in nature. Directors must be loyal, avoid conflicts of interest and

act in good faith, and should, themselves, be mindful of the requirements of their office and their

status as fellow homeowners, always endeavoring to comply with both.

114. The HOA was and is always obligated to perform in accordance with contractual

agreements, oral and written, made between HOA and any member of HOA, including those

implied contracts indicated by practice and/or precedent of the HOA and members thereof.

115. The HOA breached said obligations by its erroneous application of 1993 Amended

Declaration of Covenants, Conditions & Restrictions (CC&Rs) of the Sunrise Homeowners

Association, Inc., as they apply to the rights and privileges of the Baldwins (see A.C. Aukerman

Co. v. R.L. Chaides Construction Co., 22 USPQ2d 1321 (Fed. Cir. 1992); Wooded Shores

Property Owners Association Inc. v. Mathews, 37 Ill. App.3d 334, 345 N.E.2d. 186, 189; Lake

Development Enterprises, Inc. v. Kojetinsky, Mo.App. 410 S.W.2d 361, 367 (causing position of

Cross-Complainants to be prejudiced by Cross-Defendant’s delay in bringing an action)).

116. The HOA breached said obligations by deliberately refusing to reasonably

accommodate Mrs. Baldwin’s disability request and litigate a reasonable modification required

for her medical needs.

117. The HOA breached said obligations by changing its normal applications and/or

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interpretations of 1993 Amended Declaration of Covenants, Conditions & Restrictions (CC&Rs)

against the Baldwin, by allowing other HOA members to operate businesses out of their homes

as well as far less stringent architectural controls enforced or demanded of the Baldwins.

118. Cross-Defendant, by their deliberate breaches of contract against Cross-

Complainants, have engaged in, and demonstrate they will continue to engage in, the pattern and




the FEHA, § 12900, et seq. The Baldwins have been harmed by said breaches of contract in an

amount according to proof, including reasonable fees and court costs.

SEVENTH CAUSE OF ACTIONBreach of Fiduciary Duty

(As to all Cross-Defendants)119. Cross-Complainants realleges, and incorporate by reference herein, each and every


120. All Cross-Defendants, and each of them, were obligated to perform in good faith

their duties as elected directors, managers, and Architectural Control Committee members of the

HOA. The Texas Supreme Court wrote in Texas Bank & Trust Company v. A.E. Moore, 595

S.W.2d 502 (Tex. 1980):

“When persons enter into fiduciary relations each consents, as a matter of law, to havehis conduct towards the other measured by the standards of the finer loyalties exacted bycourts of equity. That is a sound rule and should not be whittled down by exceptions. Ifthe existence of strained relations should be suffered to work an exception, then adesigning fiduciary could easily bring about such relations to set the stage for a sharpbargain…mischief would result more often from engrafting exceptions upon the generalrule than from a strict adherence thereto.”

121. As a purported non-profit mutual benefit homeowners association, the HOA officers

and/or board of directors owed and always owes a fiduciary duty, care, loyalty, good faith, full

disclosure, candor, oversight, etc. to its members, including Charles F. Baldwin and Carol C.

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Baldwin, to conduct themselves with fidelity and integrity and not act arbitrarily, capriciously,

or in violation of the Baldwins’ rights (See Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985);

Ivanhoe Partners v. Newmont Mining Corp., 535 A.2d 1334,1345 (Del. 1987); In re Walt Disney

Co. Derivative Litigation, 906 A.2d 27 (Del. 2006).

122. Said Cross-Defendant, and each of them, breached their fiduciary duty owed to the

HOA membership as a whole by their arbitrary and capricious conduct as aforesaid and are

specifically guilty of constructive fraud against Charles F. Baldwin and Carol C. Baldwin (See

UCIOA § 3-103(a); LaSalle National Trust v. Board of Directors of the 1100 Lake Shore Drive

Condominium (1997) 677 N.E.2d, 1378.). In re Cohen v. Kite Hill Community Ass’n, 142 Cal.

App. 3d 642,651, 191 Cal. Rptr. 290 (1983), the court declared:

“The business and governmental aspects of the association and the association’srelationship to its members clearly give rise to a special sense of responsibility upon theofficers and directors... . This responsibility is manifested in the requirements of fiduciaryduties and the requirements of due process, equal protection, and fair dealing.”

123. Cross-Defendant, by their deliberate breaches of fiduciary duty, have engaged in, and

demonstrate they will continue to engage in, the pattern and unlawful practice of housing

discrimination described herein unless and until the Court shall enjoin these parties by Court

Order, pursuant to the police power granted by §§ 12920 and 12920.5, and pursuant to §

12989.2(a), from failing or refusing to comply with the mandates of the FEHA, § 12900, et seq.

124. In taking the actions herein above described, Cross-Defendant did so with the

intention on their part of depriving Mrs. Baldwin’s expectation of “reasonable accommodations”

based on her legal physical disability status, as well as depriving the Baldwins of their

constitutional rights, property rights, and other legal rights so as to cause Charles F. Baldwin and

Carol C. Baldwin irreparable harm, doing so maliciously, oppressively and in conscious disregard

of the Baldwins’ rights, continuing to subject Mrs. Baldwin to cruel and unjust hardship, ridicule,

and humiliation so as to justify an award of exemplary damages, according to proof, including

reasonable fees and court costs.

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EIGHT CAUSE OF ACTIONIntentional Infliction of Emotional Distress

(As to all Cross-Defendants) 125. Cross-Complainants realleges, and incorporate by reference herein, each and every


126. Courts have noted that to prove intentional infliction of emotional distress

(hereinafter “IIED”), the conduct of the defendant would be such that it would cause a reasonable

person to exclaim “Outrageous!” in response. Some of the general factors necessary to persuade

that IIED occurred are:

(1) there was a pattern of conduct , not just an isolated incident;(2) the plaintiff was vulnerable and the defendant knew it;(3) the defendant was in a position of power;(4) racial epithets were used; and(5) the defendant owed the plaintiff a fiduciary duty.

127. Cross-Defendant’s conduct as aforesaid was wilful, wanton, oppressive,

intentionally malicious and reckless, and was pursued and performed with the intention of

annoying, harassing and inflicting emotional distress upon the Baldwins as well as the mental

suffering of Mrs. Baldwin. Mrs. Baldwin has been hospitalized twice during this litigation (since

September 2009) for a total of 29 days which has caused her emotional and anti-seizure

medications to be increased. Said conduct as aforesaid was unreasonable and beyond the bounds

of any conduct acceptable in a civilized society, being outrageous and extreme.

128. Cross-Complainants are informed and believe and therefore allege that Massey

deliberately continued to harass and inflict emotional distress upon Mr. Baldwin by the release

of “secret balloting information” in a public document. In that document, Massey caused to have

written “Charles Baldwin wrote in his name and cast 3 votes for himself.” This is an intentionally

malicious and reckless disregard for the integrity of the election voting process as protected by

both federal and Sate of California law.

129. The actions of Cross-Defendants as aforesaid to intentionally inflict emotional

distress upon the Baldwins resulted in their suffering extreme and long-standing emotional

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distress including lost wages, lost investment, lost business, lost credit, loss of thousands of

dollars, lost peace and quiet, lost enjoyment and comfort of their home, and damaged

relationships with their neighbors and reputation within the HOA community. Cross-Defendant,

by their deliberate infliction of emotional distress against the Baldwins, have engaged in, and

demonstrate they will continue to engage in, the pattern and unlawful practice of housing

discrimination described herein unless and until the Court shall enjoin these parties by Court

Order, pursuant to § 12989.2(a), from failing or refusing to comply with the mandates of the

FEHA, § 12900, et seq.

130. It is for these allegation contained within ¶¶ 126 through 129 above that two civil

libel and slander law suits were brought against Massey in 2006. See BALDWIN v. MASSEY,

06SC03523 and WOODS v. MASSEY, 06SC03455. The Court has allowed Massey’s out-of-

control conduct to go unchecked irregardless of his actions which has only emboldened his abuse

of people he disagrees with to the point of disability discrimination, etc. Cross-Complainants are

informed and believe and therefore allege that the other three board members are intimidated by

Massey’s and Ma Gill’s threatening behavior and will not stand up against him/them in fear of

what action(s) Massey or Ma Gill may instigate against them individually or as a group.

131. Cross-Defendants' actions were intentional and with malice, oppressiveness and in

conscious disregard of the civil rights of Charles F. Baldwin and Carol C. Baldwin as well as the

intentional causing to Mrs. Baldwin extreme psychological suffering, and as such the Baldwins

are entitled to an award of exemplary damages, according to proof, including reasonable fees and

court costs.

NINTH CAUSE OF ACTIONCivil Conspiracy

(California Penal Code ¶¶ 182 - 185 as to all Cross-Defendants) 132. Cross-Complainants realleges, and incorporate by reference herein, each and every


133. “The elements of an action for civil conspiracy are the formation and operation of

the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the

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common design. . . . In such an action the major significance of the conspiracy lies in the fact that

it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages

ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the

degree of his activity.” (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox

Incorporated v. Woods (1927) 202 Cal. 675, 677-678.)' (Id. at 511.)

134. California law declares that criminal and civil conspiracy exists when two or more

people agree to commit almost any unlawful act, then take some action toward its completion.

The action taken need not itself be a crime, but it must indicate that those involved in the

conspiracy knew of the plan and intended to break the law (see California Penal Code ¶¶ 182 -

185). One person may be charged with and convicted of both conspiracy and the underlying

crime based on the same circumstances. The crime of conspiracy, according to its modern

interpretation, may be of two kinds, namely, (1) conspiracies against the public, or (2) such as

endanger the public health, violate public morals, insult public justice, destroy the public peace,

or affect public trade or business. Civil conspiracies need not be written or formal, and may be

proved by circumstantial evidence alone.

135. Cross-Complainants are informed and believe and thereon allege that the

Cross-Defendants, each and every one, have formed an agreement or kind of “partnership” with

a criminal purpose in which each member became an agent or partner of every other member.

Their common plan and scheme benefitted themselves alone, whereby all [former CCSH] HOA

board members since April 24, 2006 have breached their fiduciary, agency, duty to, and

responsibilities to Cross-Complainants intentionally, committing fraud and misrepresentation to

not only Cross-Complainants but to the other 220 HOA member households as detailed in ¶ 137

below (see 18 U.S.C. § 371; Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911

(5th Cir. 1952)).

136. The purpose of “agency” is to enable a person or group of persons to accomplish

results through the services of others, thereby enlarging the scope of such person’s activities. The

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18Mary Elliott was a member of the CCSH group headed by Gifford D. Massey (see ¶ 26 above.) and one of

the two 2006 Annual HOA Meeting Election Tellers.


three-volume Restatement (Second) of Agency (1958) contains the following definitions:

a. “Agency”: “the fiduciary relation which results from the manifestation of consent byone person [or group of persons] to another [or group of others] that the other shall acton his behalf and subject to his control, and consent by the other so to act.” [Bracketsadded.]b. “Principal”: “the one who is to act”.c. “Agent”: “any person has the capacity to be an agent but the agent’s liability willdepend upon the degree of his capacity.”

137. As previously stated in ¶¶ 25 - 32, 65, 69 through 70 and 133 through 134 above,

Cross-Defendants, and each of them, colluded to “self-serve” themselves through the initiation

of a Sacramento County Superior Court civil suit, Case No. 05AS04991, against the HOA and

Mr. Baldwin personally.

138. When that action failed, their duplicitous agreement was revised to remove the entire

existing HOA board and replace them with CCSH members, and then cause the HOA’s legal and

attorney fees regarding recovery action against Ma Gill to be dropped by the Court.

139. Cross-Complainants are informed and believe and thereon allege that Cross-

Defendant Massey canvassed the residents of the HOA beginning in late 2005 through the spring

of 2006 gathering some 120 “proxies” under the guise that he and the proxy givers objected to

proposed covering of the common area pool complex (see ¶¶ 28 - 30 above). However, at the

Monday, April 24, 2006 Annual Meeting of the HOA Members, Massey and Ma Gill, in

conspiracy with Mary Elliott, one of the two election tellers, [Massey and Ma Gill] waited until

all other ballots were submitted and the voting was declared ‘Closed’, then Massey delayed the

voting process by declaring that he hadn’t voted his “proxies” and therefore knowing what the

approximate vote running tally was from Mrs. Elliott 18 proceeded to vote what he determined

was needed necessary to manipulate and influence the outcome of the election to his and Ma

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19E-mails from Jackie Allen, dated 5/09/06 @ 10:05 pm, Leslie Smith, dated 05/10/06 @ 2:57 pm and

5/12/06 @ 10:11 am, will be presented at trial confirming this allegation of “the way CCSH took over the ballot

count and stuffing the ballot box.” Mr. Smith was the 2nd 2006 Annual Meeting Election Teller.


Gill’s desire by “stuffing the ballot box” 19 with his 120 proxies (See Chantiles v. Lake forest II

Master Homeowners Ass’n, 37 Cal. App. 4th 914 (1995)).

140. All CCSH members were elected and the newly elected HOA board immediately

engaged in acts of conspiracy to delay and then subvert the recovery process of some $15,000 in

legal and attorney fees from Ma Gill by postponing the “recovery motion” scheduled before the

Sacramento County Superior Court on Friday, April 28, 2006. The new board, all indirect

participants in the Ma Gill v. SHA law suit, claimed that they were unfamiliar with the matter

before the Court and needed time to investigate its merits.

141. When these acts of conspiracy were discovered by Mr. And Mrs. Baldwin and

others, they notified the HOA entire membership via first class mail, whereby Cross-Defendant

HOA board published the following one paragraph article on the front page of the June 24, 2006

HOA newsletter:

“Clarification – Apparently there is a rumor that the Board of Directors had the MaGillvs. SHA lawsuit dropped. This is NOT true ... The current Board had no input orknowledge of this decision until after it had been decided and the association attorneyhandling the case notified the board.”

[See HOA legal counsel’s contrary statement at ¶ 146 below.]

142. Contrary to the newly elected board’s declaration in ¶ 141 above, newly elected

board member GAYLE SARKISSIAN (“Sarkissian”) and member of the CCSH sent an e-mail

to HOA attorney SUSANA C. CENDEJAS, Esq. (“Cendejas”) on Tuesday, April 25, 2006

requesting the HOA’s motion be taken “off court calender” according to “... Superior Court of

California, County of Sacramento, and chapter 3 – Civil Law and Motion Rules, 3.00 (I).”

143. Cross-Complainants are informed and believe and therefore allege that Sarkissian

obtained the citation from Ma Gill’s attorney, STEVE SANDERS, Esq., in order for the newly

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elected [all CCSH member] HOA board to have the Ma Gill recovery motion before the Court

eventually dismissed.

144. The further support this allegation, the following seven e-mail exchanges between

Sarkissian and Cendejas which reflect such actions will be produced at time of trial:

(1) 4/26/2006 @ 1:40 pm Cendejas to Sarkissian,

(2) 4/26/2006 @ 2:50 pm Sarkissian to Cendejas,


(4) 4/26/2006 @ 4:18 pm Sarkissian to Cendejas,


(6) 4/26/2006 @ 7:32 pm Sarkissian to Cendejas, and

(7) 4/27/2006 @ 11:23 am Cendejas to Sarkissian.

145. This correspondence reflects that a conspiratorial “... input or knowledge ...” existed

between the HOA and their attorney of record, Cendejas, manipulated the recovery motion

outcome. The Court removed the matter from the April 28th calendar and continued the matter to

May 26, 2006. Cross-Defendant HOA board then had the matter continued from May 26, 2006

to June 26, 2006 and finally the new HOA board “... withdrew the motion.” in June 2006.

146. Upon Cross-Complainants investigation regarding the conspiracy, Cendeja s notified

Cross-Complainants in a February 7, 2007 certified mail which stated in part as follows:

“Accordingly, as the motion for attorney’s fees and cost was an effort by the Associationto recuperate the fees and costs it has incurred in defending Mr. MaGill’s lawsuit, it waswithin the Board’s sole discretion to postpone and withdraw the motion.”

[See HOA board’s contrary statement at ¶ 141 above.]

Further proof of a civil conspiracy exists. It is important to remember that all five

newly elected board members of the April 24, 2006 Annual Meeting of the Members were

dissident and hostile CCSH members and financial supporters of Ma Gill and his law suit against

the Association. Cross-Complainants are informed and believe and therefore allege that the

CCSH group continued to meet after the 2006 Annual Election at Ma Gill’s and Massey’s homes

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with Massey as the facilitator. This just 12 hours earlier elected board of director’s loyalty was

to Ma Gill, not to the Sunrise Homeowners Association, Inc., who’s interest they were elected

to represent as fiduciaries of the corporation.

147. Cross-Defendants, each and every one, continue to act in concert relative to the

campaign of aggression in bad faith as aforesaid with a design, common plan and scheme to deny

Mr. and Mrs. Baldwin of their livelihood, Mrs. Baldwin reasonable accommodations and

reasonable modifications as required for the peaceful, quiet, enjoyment of their home, as well as

deliberate acts on the part of the HOA to permanently deprive the Baldwins of their constitutional

rights of due process to reasonably maintain and improve their home as permitted by the CC&Rs

and with the intent of Cross-Defendants to purposely annoy and harass Charles F. Baldwin and

Carol C. Baldwin, knowing their actions to be harmful to the Baldwins as a result of Massey’s

and Ma Gill’s breach of fiduciary duty to the Baldwins and all involved and the personal

vendettas and agendas against Cross-Complainants.

148. Cross-Defendant, each and every one, have “unclean hands” in that they violate

the very HOA governing documents they insist enforcing upon Cross-Complainants (See

Harrison v Frye (1957) 148 CA2d 626, 307 P2d 76.). There is a breach of their fiduciary to the

Baldwins and the homeowners association as a whole.

149. Both CHARLES F. BALDWIN and CAROL C. BALDWIN have been damaged by

Cross-Defendant's aforesaid acts of conspiracy and acts in furtherance of said conspiracy in an

amount to be determined according to proof. Cross-Defendant, by their deliberate conspiratorial

behavior, have engaged in, and demonstrate they will continue to engage in, the pattern and





150. Cross-Defendant’s aforesaid conspiracy and acts in furtherance of said conspiracy,

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as aforesaid, were pursued and accomplished with malice, oppression, and in conscious disregard

of the Baldwins’ rights such as to entitle Charles F. Baldwin and Carol C. Baldwin to an award

of exemplary damages, according to proof, including reasonable fees and court costs.

K. CONCLUSION



152. Ongoing since April 24, 2006, Cross-Defendants have committed repeated arbitrary,

capricious and malicious conduct and discriminatory treatment directed at and applied against

Cross-Complainants, CHARLES F. BALDWIN and CAROL C. BALDWIN, a “protected class”

of people. During this time span, the HOA, by and through its Board of Directors, including but

not limited to, GIFFORD D. MASSEY, NORMAN J. MA GILL, II, GAYLE SARKISSIAN,

MICHAEL DRIELING, DAVID LAWRENCE, BRETT ANDERSON, and their agents, assigns,

and committee members were inconsistent in the interpretation and application of the CC&Rs

toward Cross-Complainants CHARLES F. BALDWIN’s and CAROL C. BALDWIN’s

allegations relative to said “reasonable accommodation” and “reasonable modification”efforts

for their home. The HOA board members aforementioned were non-responsive, obstructionistic,

interfering, exceedingly dilatory, contradictory, obstinate, oppressive, onerous, egregious, mis-

representative, offensive, noxious, unconscionable, harassing and discriminatory in their

treatment of Cross-Complainants. There was a breach of their fiduciary to the Baldwins as well

as the HOA.

L. PRAYER FOR RELIEF

WHEREFORE, the Cross-Complainants pray that the Court issue judgment in favor of

CHARLES F. BALDWIN and CAROL C. BALDWIN, and orders Cross-Defendant, and each

of them, to do the following:

1. As to the First through Third Causes of Action, order a permanent injunction relief as

follows:

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a. Require Cross-Defendant, and each of them, to cease and desist from

discriminating against Mrs. Baldwin, Mr. Baldwin, and all other residents of the

Sunrise Homeowners Association on the basis of disability, including, but not

limited to, refusing to reasonable accommodate residents with disabilities at any

housing accommodations managed or operated by Cross-Defendant;

b. Require Cross-Defendant, and each of them, to engage in a timely, good-faith,

interactive process with the Baldwins, as well as residents at any housing

accommodation managed or operated by Cross-Defendant and provide such

residents reasonable accommodations on the basis of disability;

c. Require Cross-Defendant, and each of them, to develop a written fair housing

policy, which includes, but is not limited to, disability discrimination, request for

reasonable accommodations of a disability and the interactive process, that is in

compliance with the FEHA and Unruh Civil Rights Act, and conduct a training

program, at their own expense, regarding such policy for all officers, board of

directors, managers, supervisors, staff and employees of Cross-Defendant within

sixty (60) days of the effective date of the Court’s Order;

d. Require Cross-Defendant, and each of them, to disseminate and post a written

fair housing policy, which includes, but is not limited to, disability discrimination,

request for reasonable accommodations of a disability and the interactive process,

that is in compliance with the FEHA and Unruh Civil Rights Act, and conduct a

training program, at their own expense, regarding such policy for all officers,

board of directors, managers, supervisors, staff and employees of Cross-Defendant

within sixty (60) days of the effective date of the Court’s Order;

e. Require Cross-Defendant, and each of them, to, within sixty (60) days of the

effective date of the Court’s Order, inform all of the Cross-Defendant’s officers,

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board of directors, managers, supervisors, staff, employees and residents of the

written policy against discrimination based on disability, of the specific

procedures by which officers, board of directors, managers, supervisors, staff,

employees and residents may report incidents of discrimination;

f. Require Cross-Defendant, and each of them, to require Cross-Defendant’s

officers, board of directors, managers, supervisors, staff and employees, within

sixty (60) days of the effective date of the Court’s Order, to attend a fair housing

training program, at Cross-Defendant’s own expense, regarding the FEHA’s

prohibition against discrimination on the basis of disability;

g. Require Cross-Defendant, and each of them, to post in conspicuous locations

throughout their business premises and throughout all housing accommodation

managed or operated by Cross-Defendant the DFEH’s Nos. 164H and 164Hs

posters;

h. Require Cross-Defendant, and each of them, to post notices in conspicuous

locations throughout their business premises and throughout all housing

accommodations managed or operated by Cross-Defendant, stating that Cross-

Defendant has violated the FEHA and the Unruh Civil Rights Act, and specifying

the remedies that have been ordered by the Court;

I. Require Cross-Defendant, and each of them, to provide proof to the DFEH of

their good faith compliance with their respective obligations as ordered by the

Court within one hundred (100) days of the effective date of the Court’s Order;

2. As to all Causes of Action, order Cross-Defendant, and each of them, to pay to the

Baldwins their actual damages and for all their costs and expenses, in an amount to be proven at

trial, plus annual interest, as required by law;

3. As to the First through Ninth Causes of Action, order Cross-Defendants, and each of

them, to pay the Baldwins damages for emotional distress and suffering in an amount to be

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proven at trial;


them, to pay the Baldwins punitive damages in an amount to be proven at trial;


them, to provide such other relief as the Court deems to be just and proper.

CERTIFICATE

We do hereby certify that this First Amended Cross Complaint is filed in good faith and

is not filed for the purpose of delay and is in our respective opinions that the ground are well

taken.

CHARLES F. BALDWIN and CAROL C. BALDWIN state under the penalty of perjury

under the laws of the State of California that he/she/they has/have read the foregoing First

Amended Cross-Complaint and all is true to the best of their information and belief.

Dated: November 1, 2010.________________________________________CHARLES F. BALDWIN, Co- Trustee of the Charles F.& Carol C. Baldwin Living Trust and as an individualperson.

Dated: November 1, 2010.

_________________________________________CAROL C. BALDWIN, Co-Trustee of the Charles F. &Carol C. Baldwin Living Trust and as an individualperson.

///

//

/

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TABLE OF AUTHORITIES

CASES

40 West 67th Street Corporation v. Pullman, 790 N.E. 2d 1174 (N.Y. 2003) . . . . . . . . . . . . 32

A.C. Aukerman Co. v. R.L. Chaides Construction Co., 22 USPQ2d 1321 (Fed. Cir. 1992) . 34

Advocacy Ctr. for Persons With Disabilities, Inc. v Woodland Estates Ass’n, Inc. (MD Fla 2002)192 F Supp 2d 1344, 1348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985) . . . . . . . . . . . . 6

Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

April Enters., Inc. v. KTTV, 147 Cal. App. 3d 805, 816, 195 Cal. Rptr. 421, 425 (1983) . . . 28

Bragdon v. Abbott, 524 U.S. 624, 631 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Brown v. Smith (1997) 55 Cal.App.4th 767, 780 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bryant Woods Inn v. Howard County, 124 F.3d 597, 603 (4th Cir. 1997) . . . . . . . . . . . . . . . . 4

Chantiles v. Lake forest II Master Homeowners Ass’n, 37 Cal. App. 4th 914 (1995) . . . . . . 41

Cohen v. Kite Hill Community Ass’n, 142 Cal. App. 3d 642,651, 191 Cal. Rptr. 290 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Costa Serena Owners Coalition v. Costa Serena Architectural Committee, 175 Cal. App. 4th1175, 97 Cal. Rptr. 3d 170 (4th Dist. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Cunningham v. Superior Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Department of Veterans Affairs(Cunningham v. Superior Court) (1998) 67 CA4th 743, 79 CR2d 248.). . . . . . . . . . . . . . . . . 6

Giebeler v. M & B Associates (9th Cir. 2003) 343 F.3d 1143, 1147 . . . . . . . . . . . . . . . . . . . 10

Gittleman v. Woodhaven Condominium Ass’n, Inc., 972 F. Supp 894 (D.N.J. 1997) . . . . . . 12

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Haines v. Kerner, 404 U.S. 519-421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Harm v. Frasher, 181 Cal. App. 2d 405, 417, 5 Cal. Rptr. 367, 374 (1960) . . . . . . . . . . . . . 28

Harrison v Frye (1957) 148 CA2d 626, 307 P2d 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

HUD v. Ocean Sands, Inc., No HUD DALJ 04-90-0231-1 (HUD Office of Admin. Law Judges9-3-93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

In re Walt Disney Co. Derivative Litigation, 906 A.2d 27 (Del. 2006) . . . . . . . . . . . . . . . . 36

In re Winship, 397 U.S. 358, 382 (1970), (Black, J., dissenting) . . . . . . . . . . . . . . . . . . . . . 33

Ironwood Owners Ass’n IX v. Solomon 178 Cal. App. 3d 766, 772, 224 Cal. Rptr. 18 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Ivanhoe Partners v. Newmont Mining Corp., 535 A.2d 1334,1345 (Del. 1987) . . . . . . . . . . 36

Janush v. Charities Housing Development Corp. (N.D.Cal. 2000) 169 F.Supp.2d 1133,1135(Janush) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 750 . . . . . . . . . . . . . . . 8

Lake Development Enterprises, Inc. v. Kojetinsky, Mo.App. 410 S.W.2d 361, 367 . . . . . . . 34

LaSalle National Trust v. Board of Directors of the 1100 Lake Shore Drive Condominium (1997)677 N.E.2d, 1378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Marsh v. Alabama, 6 Wm. & Mary Bill Rts. J. 461, 493-94 (1998) . . . . . . . . . . . . . . . . . . . 30

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-678 . . . . . . . . . . . . . . . . . . . . . . . . . 39

Nahrstedt v. Lakeside Village Condominimum Ass’n (1994) 8 C4th 361, 33 CR2d 63 . . . . 19

Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952) . . . . . . . . 39

Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233. . . . . . . . . . 7

Platsky v. C.I.A., 953 f.2d. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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Quigley v. Pet, Inc., 162 Cal. App. 3d 877, 887-88, 208 Cal. Rptr. 394,399-400 (1984) . . . 30

Raven’s Cove Townhomes, Inc. v. Knuppe Development Co., 114 Cal. App. 3d 783 Cal. Rptr. 334(1st Dist. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Ritchey v. Villa Nueva Condominium Assn., 81 Cal. App. 3d 688, 146 Cal. Rptr. 695 (1st Dist.1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Schantz v. The Village Apartments, 998 F. Supp. 784, 791 (E.D. Mich. 1998); 994 F. Supp. At1255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Selmon v. Pourtsmouth Drive Condo. Ass’n, 89 F.3d 406 (7th Cir. 1996) . . . . . . . . . . . . . . . . 4

Sherar v. Cullen, 481 F. 2d 946 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Smith & Lee Assocs v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996) . . . . . . . . . . . . . . . 10

Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384 . . . . . . . . . . . . . . . . . . . . . . . . 8

Taormina Theosophical Community, Inc. v. Silver, 140 Cal. App. 3d 964, 190 Cal. Rptr. 38 (2dDist. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Texas Bank & Trust Company v. A.E. Moore, 595 S.W.2d 502 (Tex. 1980) . . . . . . . . . . . . 35

Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . . . . . . . 9

Tsombanidis v. West Haven Fire Dep’t., 352 F.3d 565, 573 (2d Cir. 2003) . . . . . . . . . . . . . . 5

U.S. Airways v. Barnett, 535 U.S. 391, 397 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. California Home Management Co., 107 F.3rd 1374, 1390 (9th Cir. 1997) . 10

Wooded Shores Property Owners Association Inc. v. Mathews, 37 Ill. App.3d 334, 345 N.E.2d.186, 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

STATUTES10 Cal. Code Regs. § 2792.21(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18 U.S.C. § 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

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24 C.F.R. § 100.80(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

24 CFR § 100.203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

24 CFR § 100.204(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

24 CFR § 100.65(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 28

24 CFR §100-203(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. 3604(f)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. 3615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. § 3601 et. seq. (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 3601 et. seq. (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 3604(f)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10

42 U.S.C. § 3617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

42 U.S.C.A. § 12181(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

42 USC § 3604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

California Civil Code § 1350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

California Government Code § 12927, subdivision (e) and 12924 . . . . . . . . . . . . . . . . . . . . 19

California Government Code § 12955, subdivisions (a) and (d) . . . . . . . . . . . . . . . . . . . . . . 19

California Government Code § 12989, subdivision (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

California Penal Code ¶¶ 182 - 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Civil Code § 1354(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Civil Code § 1360(a)(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Civil Code § 1363.05(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Civil Code § 1363.05(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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Civil Code § 1363.810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Civil Code § 1363.840 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Civil Code § 1363(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 30, 31

Civil Code § 3294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Civil Code § 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Civil Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 26, 27

Civil Code § 54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27

Civil Code § 54.1(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Civil Code § 54.1(b)(1) and (b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Civil Code §§ 1357.100-1357.150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Civil Code §§1863.810, 1369.510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Code of Federal Regulations - Title 24 - Section 100.201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Corporations Code § 7341(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30, 31

FEHA, section 12900, et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

FHAA at § 804(f)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FHAA at §§ 3607 through 3619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Gov. Code § 12900 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Gov. Code § 12926, subd. (I)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gov. Code § 12926, subdivision (k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Gov. Code § 12927, subd. (c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gov. Code § 12933, subd. (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Gov. Code § 12948, subdivision (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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Gov. Code § 12955, subdivision (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Gov. Code § 12955(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gov. Code § 12956.1(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Gov. Code §§ 12920 and 12920.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Gov. Code §§ 12927, subd. (c) (1), 12955 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Stats. 1992, ch. 182, § 10, P. 919.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

MISC.BALDWIN v. MASSEY, 06SC03523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CARMICHAEL CANTERBURY VILLAGE OWNERS ASSOCIATION v. MICHAELJOSEPH, Sacramento County Superior Court Case No. 34-2008-00013502 CL-OR-CDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

DFEH complaint # H200910-Q-0079-00-pr / HUD case # 09-10-0223-8 . . . . . . . . . . . . . . 24

DFEH complaint # H200607-Q-0247-00-ph / HUD case # 09-07-0528-8 . . . . . . . . . . . . . . 21

NORMAN J. MA GILL, II v SUNRISE HOMEOWNERS ASSOCIATION, a nonprofit corporation,CHARLES BALDWIN, and DOES 1-25, Sacramento County Superior Court Case No.05AS04091 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Uniform Common Interest Ownership Act of 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 36

WOODS v. MASSEY, 06SC03455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

11-01-2010 amended cross complaint

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