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Berding & Weil Obtains Defense Verdict

Press Release

November 02, 2017

In a five day jury trial in Orange County Superior Court, Berding Weil LLP attorneys Paul Windust, Chloe Apter, and Maria Kao successfully defended a 100 unit condominium project against claims for breach of contract and breach of fiduciary duty arising from an owner's claim that the Board of Directors improperly denied his architectural application.

In the summer of last year, the plaintiff purchased a unit in the condominium project located in Dana Point, California. The plaintiff sought approval for a complete remodel of his newly purchased unit. The Board of Directors denied the application primarily because the plaintiff sought approval to penetrate the common area roof to vent a fireplace that he wanted to install in the second story master bathroom. The association had never before approved penetrations through the common area roof because of concerns related to potentially increased roof maintenance and water intrusion. Despite this denial, the plaintiff began demolition of the unit, rendering it uninhabitable.

The plaintiff sought an appeal of the denial and suggested that he meet with the Board at the next scheduled board meeting to which the manager agreed. When the meeting arrived, the plaintiff did not attend. Accordingly, the Board affirmed its earlier denial of the plaintiff's architectural application.

Months passed before the association received a letter from the plaintiff's attorney demanding a meeting via internal dispute resolution. After the meeting, the association agreed to provide conditional approval of the plaintiff's application, but still withheld approval for venting through the common area roof. When the remodel was complete, the association learned that the plaintiff had installed roof vents anyway, despite the association's denial of this aspect of his remodel project.

Then, the plaintiff sued the association in Orange County Superior Court for breach of contract and breach of fiduciary duty, claiming that the Board's denial of his first application caused a delay in his project and caused him emotional distress. The plaintiff claimed over $60,000 in economic damage and another $60,000 in emotional distress damages.

The jury deliberated for approximately five hours and returned a complete defense verdict. The jury found that the plaintiff could not enforce the CC&Rs because he failed to show that he met all of his obligations under the CC&Rs. The jury also found that the plaintiff did not suffer emotional distress as a result of the association's denial of his architectural application. Because the association prevailed in the action, it will be entitled to recover its attorneys' fees and costs.

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