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The Broken Czipper and Mezger’s POLP Rain

September 10,  2006 

Hi Joe:

These (see email below from former Coto de Caza board of directors, Joe Morabito) are clear indications of an out of control board:

Generally, the rights of homeowners include the right to participate in meetings of the board of directors and to be heard, including the participation of homeowner’s representatives. 

These rights include the right to enter into dialogue with the association board of directors with regard to any problem perceived in the development, without fear of ridicule or intimidation of any kind.  Contrary to what Mezgers Paragons of the Legal Profession (Mezger’s POLP Rain) are actively doing.

These rights include the use of the ethical principle of fair distribution.  Consider that the President of the Board of directors proudly announced in a recent President’s letter that he was encouraging residents of the Estates and Villages to participate in the safety committee, and in the same breadth rejects a CZ resident, with over 30 years security management experience, simply because such resident has an independent opinion!

 

These rights include respect for law and order

 

Ironically in California, the home of direct participative democracy, we have a Coto de Caza local government where  Fascist Islamic Extremists would feel very much at home. Fortunately for Coto de Caza residents, California also has one of the most substantive and procedurally comprehensive and liberal anti-SLAPP statues in the nation – indications are found in the statue’s first paragraph: 

 

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.  The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.  To this end, this section shall be construed broadly.

 

 

 

SLAPP RESOURCES

 

 

SLAPP Report Form — Use this on-line form to request help with a SLAPP filed in California.

Survival Guide for SLAPP Victims — Explains SLAPPs, how to protect yourself from being a SLAPP target, and how to deal with SLAPPs.

Defending Against A SLAPP — Describes the legal process in defending against a SLAPP in California.

CyberSLAPPs — Information on suits by companies against anonymous Internet posters.

Where to Find Help — Information on organizations that provide legal assistance to SLAPP victims as well as organizations active in fighting SLAPPs.

Bibliography on SLAPPs — A bibliography prepared by Penelope Canan and George Pring of the Political Litigation Project, University of Denver, Colorado.

Legal Documents (Official government documents and selected cases.)

Miscellaneous (Miscellaneous published and unpublished writings, seminars and workshops, continuing legal education.)

 

 

 

 

 

OTHER SELECTED BREACHES:

 

Breach of Fiduciary Duty  - Depraved Indifference:  We have been asking Mr. Varo and this board to focus on association matters, rather than to pursue personal agendas.  Finally, in  the January 2006 issue the CZ Master Association’s President’s Letter, Mr. Varo recognizes that “It is important that while I and others on the board have our personal opinions on these subjects and the CSD process, the process must be driven by residents and not by the board…! 

 

However, once again the board is using association funds to promote the CSD/City Hood issues by inviting “…some residents who will take the reins on the investigation of the merits and/or lack thereof associated with the formation of a CSD.”

 

Remember that this is the same board that for over two years has refused to form a security committee, even though we have made several comprehensive proposals and have volunteered to lead the committee.

 

This is the same board that has refused to do anything, including responding to a number of calls for action, immediately after the first traffic fatality in 10 years!

 

This is the same board that has refused to even acknowledge the security challenge we issued them.

 

Breach of Fiduciary Duty – Depraved Indifference

Remember that this is the same board that for over two years has refused to form a security committee, even though we have made several comprehensive proposals and have volunteered to lead the committee.

 

This is the same board that has refused to do anything, including responding to a number of calls for action, immediately after the first traffic fatality in 10 years!

 

This is the same board that has refused to even acknowledge the security challenge we issued them.

If this is not depraved indifference, we do not know what is!  People v Gaudet, 115 AD2d 183, 495 NYS2d 253 (3rd Dept 1985), People v Knapp, 113 AD2d 154, 495 NYS2d 985 (3rd Dept 1985), US cert denied 479 US 844, . In People v Steinberg, 79 NY2d 673, 680, 584 NYS2d 770 (1992), the Court of Appeals addressed acts of omission as the basis for criminal liability, In People v Murphy, 235 AD2d 933, 654 NYS2d 187 (3rd Dept 1997)

 

Breach of Fiduciary Duty - Due Diligence – The board terminated a security director, proponent of a pro-active traffic control within the community and replaced him with an access control director- basically relegating security to the back burner, with fatal consequences. Corporations Code § 7231, Corporations Code § 5230,Burt v. Irvine Co. (1965) 237 Cal.App.2d 828

 

Breach of Fiduciary Duty – Conflict of Interest -   Funding of non-organization entities, includes placing personal agendas (turning the association into a city),  as a top priority, rather than the personal safety of residents. Corporations Code § 1353.6, Corporations Code § 5230, Corporations Code § 5233, Killean Acres Homeowners Ass'n v. Keever, 595 So. 2d 1019 (Fla. Dist. Ct. App. 1992); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. Dist. Ct. App. 1981), Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1281-82 (Cal. 1994).

 

Breach of Fiduciary Duty – Discriminatory Practices:  Widespread use of discriminatory practices, such as the arbitrary opening of the Oakview/Oakknoll gates by prominent residents, against the advice of former board members.  Providing non-association organizations with funds to promote personal agendas, while denying resources to residents more interested in accident and crime prevention. Providing  services to residents, including the exercise of their free speech rights, conditioned on non-disclosure agreements.  Selective enforcement of CC&Rs, compromising the personal welfare and well being of residents.  Corporations Code § 7231, Corporations Code § 5230, Corporate Law 124-5 (1986), Higley v. Kidder, Peabody & Co., 920 P.2d 884 (Colo. App. 1996),  Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1281-82 (Cal. 1994).

 

Breach of Fiduciary Duty – Arbitrary Decisions – The board of directors, rather than rely on the expertise provided by the property manager, used association funds to hire a general manager reporting to Keystone, the association’s property manager.  In essence, arbitrarily discarding the expertise usually provided by a property management company and replacing it with a puppet -  Evidence shows that said general manager is incapable of executing  basic core management functions such as planning, organizing, controlling and reporting on community issues in general and personal security specifically.  Evidence shows the general manager participating in a number of cover-ups. Corporations Code § 7231, Corporations Code § 5230, Scott v. Williams, 607 S.W.2d 267, 272 (Tex. App. 1980),  Corporations Code §  5233, Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1281-82 (Cal. 1994).

 

Breach of Fiduciary Duty- Due Diligence The board terminated the contract with Maxicom Consultants.  Repeated requests to review the procurement process used in arriving at this decision were ignored.   So far we have not found evidence that  due diligence was used. This decision has a significant financial impact on the management of the association.   Corporations Code § 7231, Corporations Code § 5230, Burt v. Irvine Co. (1965) 237 Cal.App.2d 828

 

Breach of Fiduciary Duty- Free Speech Rights - Unprecedented use of legal counsel funds to silence critics and use of threatening letters to stifle free speech.  Corporations Code § 1353.6, Corporations Code § 5230, Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1281-82 (Cal. 1994).

Breach of Fiduciary Duty- Due Diligence - Termination  of Securitas – arguably the largest private security company in the world, replaced by the one of the smallest ones in the region.  Audit of the process found no evidence due diligence was used.  Repeated requests for such evidence were ignored.  Corporations Code § 7231, Corporations Code § 5230, Burt v. Irvine Co. (1965) 237 Cal.App.2d 828, Killean Acres Homeowners Ass'n v. Keever, 595 So. 2d 1019 (Fla. Dist. Ct. App. 1992); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. Dist. Ct. App. 1981, Nahrstedt, 878 P.2d at 1278. (CA)

Breach of Fiduciary Duty- Due Diligence - Multiple Transponder Programs, without any real plan.  Multiple requests for evidence that due diligence was used were un-answered.  This action compromises personal safety and well-being. Corporations Code § 7231, Corporations Code § 5230, Burt v. Irvine Co. (1965) 237 Cal.App.2d 828, Killean Acres Homeowners Ass'n v. Keever, 595 So. 2d 1019 (Fla. Dist. Ct. App. 1992); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. Dist. Ct. App. 1981, Nahrstedt, 878 P.2d at 1278. (CA)

Breach of Fiduciary Duty – Conflict of Interest - Landscaping management institutionalizes discriminatory practices that reward districts sympathetic to the board. Corporations Code § 1353.6, Corporations Code § 5230, Corporations Code § 5233, Killean Acres Homeowners Ass'n v. Keever, 595 So. 2d 1019 (Fla. Dist. Ct. App. 1992); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. Dist. Ct. App. 1981), Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1281-82 (Cal. 1994).

 

Breach of Fiduciary Duty – Conflict of Interest -  Election Reform Proposals we advanced were not even considered, where other trivial matters have been funded.  The California Legislature and the Governor knew differently, as the governor signed into law CID reforms intended to do exactly what we proposed – the board calls this legislature, an attempt to micro-manage! Corporations Code § 1353.6, Corporations Code § 5230, Corporations Code § 5233, Killean Acres Homeowners Ass'n v. Keever, 595 So. 2d 1019 (Fla. Dist. Ct. App. 1992); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. Dist. Ct. App. 1981), Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1281-82 (Cal. 1994).

 

Breach of Fiduciary Duty – Conflict of Interest -  Board member appointment cover up. – process used to appoint a replacement candidate with one unconditional supporter of the board’s agenda was questionable and there is ample evidence of a cover up. Corporations Code § 1353.6, Corporations Code § 5230, Corporations Code § 5233, Killean Acres Homeowners Ass'n v. Keever, 595 So. 2d 1019 (Fla. Dist. Ct. App. 1992); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. Dist. Ct. App. 1981), Nahrstedt v. Lakeside Village Condominium Ass'n, 878 P.2d 1275, 1281-82 (Cal. 1994).

Morabito, Joe" <> wrote:
It would appear that Mr. Zipper Man will never make it to the end of his term in office.  The Zipper’s temperament will be an impediment to his success as a CZ Board Member because he is offensive.  His inability to deal with criticism and thin skin is going to do him in.  Those of us with type “A” personalities, which Varo claims is everyone living in Coto, are not likely to put up with The Zipper’s personality style for long and I am not talking about me.  I have patiently suffered Varo and Mezger for more than five years just continuing to sound alarm bells since the ballot box is not open to us as a recourse and recall is virtually impossible under our corrupt electoral system. 
The reality is that when serving in any public office roughly 50% of people are supporters and 50% of the people oppose whatever action is taken.  If CZ Board Members operate within their fiduciary responsibility and our governing documents and the law, there is no problem.  When CZ Board Members violate their fiduciary responsibility and ignore our governing documents and the law, then there are big problems.  The Varo/Mezger team has ignored their fiduciary responsibility since being elected to office.  Based on Zipper Man’s recent actions, my guess is that he is cut from the same mismatched, poorly fitting suit as Varo and Mezger.  The Zipper ran for office advocating change.  We now see that a new Board Member has been elected to office that does not have the temperament to serve.  If Zipper Man votes with Mezger and Varo which is likely, we will see more poor decisions.  However, the temperament issue is icing on a bad tasting cake that will only get worse with more criticism which is inevitable.  As the kids would say, Mr. Zipper Man needs to chill out if he has any hope of succeeding as a CZ Board Member.  I think there are pills for a bad disposition.  Joe Morabito
P.S.  On some days when I think about CZ I don’t know whether to laugh hysterically at all the mismanagement or cry miserably.  Maybe I need pills too to deal with all the pain and suffering we have experienced as a result of all the Varo/Mezger fiascos in the past five years.  I wonder, are there pills for a big pain in the butt?
From: CotoBuzz@yahoogroup s.com [mailto: CotoBuzz@yahoogroup s.com ] On Behalf Of Buzz @CotoBuzz
Sent: Saturday, September 09, 2006 7:43 PM
To: cotobuzz@yahoogroup s.com
Cc: J Harkins
Subject: [COTO] A Note From Zipperman - 2007 Dues Increase: Shirley you Jest - MPLP
Hi Joe:
You are toying with us right?  This is not really coming from Mezger's Paragons of the Legal Profession, (MPLP), right?
If so, we say that temperament is really not a good choice of words.


"Morabito, Joe" <> wrote:
Hello All:  The following note below was sent to me from Steve Zipperman.  (Scroll Down)  This is the man recently elected to the CZ Board.  It is very clear to me that this man does not have the temperament to serve in any public office.  Mr. Zipperman, if you can’t take the heat for your actions, you need to get out of the kitchen.  Election to any office carries with it special responsibilities.  Believe me when I served on the CZ Board, we were subject to vicious and often unfounded criticism.  At no time did I ever address any CZ Member in writing, or in person, they way you have reacted to criticism.  You are absolutely right.  I am very angry about the fiscal mismanagement I have seen under Varo/Mezger & Company for the past several years.  I do get angry when elected representatives squander my money for many years.  Go figure.  The only acceptable way to react, when angry, in a civilized society is with words which is exactly what I continue to do.   Would you prefer what is happening in Bagdad ?
Now because of the fiscal mismanagement we have seen for year, we face another unnecessary dues increase in 2007.  By your e-mail response, I presume that you as Treasurer of the Association will do nothing to prevent the pending dues increase.  In my book that makes you lazy and incompetent because I know that with proper decisions and hard work this dues increase can be avoided. 
Your e-mails and lack of temperament to hold office tells me that You, Varo and Mezger must be removed from office sooner than later if we are ever to see proper management of CZ again.  I am sorry if you find my e-mails offensive; but we live in a free society.  And, even though we don’t have real democracy within our gates, I assume since you are an attorney that you studied the US Constitution which does not stop at our gates.  When our elected representatives, such as it is in Coto, do a lousy job, we get to speak up about it when ever we want to address the issues.  That is just how it works in the United States , even in Coto.  If we had real democracy in Coto, perhaps we could you use the ballot box as a more sensible way to react to incompetent leaders; but that option is currently not open to us.  So, we react in the only way we can which is to scream repeatedly at those leaders until just maybe they hear what we are saying.  Joe Morabito
P.S.  All should consider this a Call for Candidates for the 2007 Elections.  This situation becomes more desperate by the day. 
From: Steve Zipperman [ ]
Sent: Saturday, September 09, 2006 9:58 AM
To: Morabito, Joe
Subject: Nice to Hear From You
Ha ha, just kidding. Actually, this is a rejection letter.  The person who gave you this email address does not have any interest in hearing what you have to say.

 

This is probably bad news, and many people cope with bad news in phases:  denial, anger, bargaining, depression, and acceptance.  Let us help you through these:

 

"It must be a mistake."  Nope.  Your past e-mails have been deemed offensive and are not worthy of a response.  If you got this message, it wasn't an accident.  No, you've definitely been rejected.
"Why is this happening to me?”  Well, there are two main points.  First, the person you wrote to obviously has had enough of your negativity.  Second, for whatever reason, that person would rather let you get this rejection letter than reject you in person.  So who should you be mad at?  Yourself, for being too intense or scary to be let down gently.  You really shouldn't be "angry" at anyone - what good does that do?

 

"I promise I'll do better next time."  Fine, great, but just not with this same person, okay?  The message being sent here is pretty clear.  This person was hit on enough to take this action.   Maybe you're just out of your league here.  Maybe this person has built up some walls that are just too thick for you to breach.  Either way, don't try again.  If you do, you're just going to seem like a stalker... or worse!  Go ahead and clean up your act, if you think you should - just be sure to find a different audience to try it out on.

 

"I don't care anymore."  Aw, we can't leave it like that!  Buck up, little nipper!  It isn't all bad!  At least you were rejected in the privacy of your own email account; you had no chance to do or say anything that you would later regret; and you've saved the time and effort of pursuing a no-chance relationship.

 

How's that?  All better now?  Good.  And good luck to you.  Maybe next time you will stop antagonizing people!
Sincerely,
The  Automated Rejector.





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