The judgment, filed in Contra Costa County Superior Court last month, states that DiFate is entitled to attorney fees and court costs under the conditions of the DBPOA’s Covenants, Conditions and Restrictions (CC&Rs) regarding a suit brought against DiFate six years ago by the association over the construction of a driveway, sidewalk and curb cut that was originally approved by the property owners association. DiFate said he is asking for close to $68,000.
“I’m happy I won, I’m happy that the CC&Rs were there for my protection,” said DiFate. “I’m happy that that part of the system works and now they’ll (DBPOA) have to step up to the plate and see how the conclusion goes.”
The dispute began in 2004 when DiFate, a DBPOA homeowner, submitted a proposal to the DBPOA for a project that included a second driveway, sidewalk and curb cut in front of his home. The association approved and stamped the plans, and DiFate had the work done.
According to court documents, after DiFate completed the work, he applied to the DBPOA for landscaping in his front yard. The association denied his application and told him to first remove his original driveway, sidewalk and curb cut. DiFate contested the request and the DBPOA began issuing monthly fines for non-compliance.
In 2008, the DBPOA filed a complaint again DiFate for damages and alleged that under the CC&Rs the association was entitled to attorney fees and costs. DiFate filed a cross-complaint for attorney fees and costs, and eventually won. The court agreed that the DBPOA complaint against DiFate was a non-suit based on the fact that the sidewalk and curb cut areas in front of DiFate’s house were county-owned and therefore not applicable under the CC&Rs.
Ward Messersmith, current DBPOA president and a member of the Design and Environmental Review Commission (DERC), said he is not qualified to speak to the legal aspects of the court documents, but did express some frustration over the case.
“My observation is that over the past five years, Roger (DiFate) has repeatedly rejected decisions made regarding his driveway issue,” said Messersmith. “Our (DBPOA) responsibilities are to act as caretakers (of the association).”
The court ruling comes at a time when the DBPOA is in flux. Disputes over the recent resignations of board members and the proper, or improper, reappointment of others has carved a deep divide within the already fractured association. And with a little more than $24,000 in DBPOA coffers, the question of how the association will pay for DiFate’s judgment is unclear.
According to DBPOA Attorney Brian Bonney, the difference between the amount DiFate is requesting and what is eventually awarded could be significant. “The dollar amount could be anywhere from a couple thousand (dollars) to $65,000,” said Bonney. “We don’t know what the amount will be.”
According to Bonney, the hearing date is set for Oct. 5, and from there the judge will take the matter under submission (typically 30 to 60 days) before rendering a judgment.
As for DiFate, he will now step away from the issue. “I’m going to let the lawyers take it and deal with it,” said DiFate. “The attorneys are going to have to figure it out. The only thing that is going to make this go away is a settlement from the attorneys. I can’t do it; it’s up to them.”
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