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Mischievous plaintiff has court case all wrapped up

September 10, 2006|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: A homeowner successfully sued our association, the association's attorneys and their law firm. A copy of the lawsuit was obtained from the courthouse, and the homeowner has been using the blank reverse side for his personal stationery. He makes no comment regarding the suit, he merely wraps all his bills and packages using the lawsuit paper. He is having a field day spreading the word without saying a word. Can the board members or lawyers he sued who are mentioned in that lawsuit sue this owner for defamation? Would the owner be allowed to do this if the lawsuit settled out of court?

Answer: Because the facts are contained in a public document, neither the board members, association lawyers nor the lawyers' law firm mentioned in the lawsuit can sue the homeowner for defamation. Whether the owner writes on the front or back of the copy of the lawsuit is irrelevant and, regardless of whether the lawsuit was won, lost or pending, any document filed with a court is considered a matter of public record.

Unless the court has ordered the case sealed from public view, the lawsuit is available for viewing and copying by anyone for any reason.

Even if the case was dismissed, he can still use the unsealed pleadings that have already been filed. There is no law that prohibits this type of usage.

California Civil Code Section 47 provides that statements made during the course of litigation are privileged, meaning that no one mentioned in the original lawsuit pleadings can sue based on those comments.

If the case was settled out of court, it is likely that only the terms of the settlement agreement would be confidential and the remaining papers or pleadings, including any motions filed with the court requesting dismissal, would still be part of the public record.

Whether this homeowner wraps his bills and packages in it or uses it as wallpaper or scratch paper, no matter whose names are listed as plaintiffs or defendants, there is no prohibition to his using the copies of a lawsuit obtained from the court.

Board refuses to release documents

Question: I've requested copies of our association's management company contract and attorney retainer, fee agreements and invoices many times, yet the board refuses to give them to me or let me see or copy them, stating they are privileged. Is this accurate?

Answer: Effective July 1, 2006, Civil Code Section 1365.2(d)(1)(E)(iv) provides that "Privileged contracts shall not include contracts for maintenance, management, or legal services." If the titleholder requests copies be provided to him rather than copying them himself, under subdivision (c)(5), "the association shall inform the member of the estimated costs, and the member shall agree to pay those costs, before retrieving the requested documents." Under Evidence Code section 11, "shall" is mandatory.

Send a written demand, signed return receipt, addressed to the individual board members and to the association, not the management company, demanding that you view, copy or receive the items no later than 10 days from the date of receipt of your correspondence.

Should the board fail to respond within that time period, consider bringing your action in Small Claims Court.

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