Chris Gelb filed her petition (08F-H088012-BFS, Apr. 22, 2008) with DFBLS citing violations of her governing documents, and a violation of the duty of directors under Title 10, 10-3830, as well as a violation of §§ 6.12 and 6.13 of the common law Restatement of Servitudes (2000 ed.).
In general, Sec 6.12 deals with the authority of the court to overturn board decisions, and 6.13 deals with duties of the board to its members. Gelb alleged discrimination against her in regard to a landscaping issue – the type of gravel chosen by the board. Gelb lost on the legal technicality that the “no discrimination” covenant applied only to the CC&Rs and not to the Design Guidelines. (Raises the question as to why the winners, Carpenter, filed the constitutionality challenge).
She lost the case on the governing documents claim, and the other two were dismissed as being outside OAH jurisdiction. The broader issues of a rational and equal treatment of members found in both of the dismissed claims would have probably brought about a favorable decision.
The superior court decision in Phoenix Townhouse v OAH, DFBLS had just declared the statute before us as unconstitutional, and Jason E. Smith, the Carpenter Hazlewood attorney of record in both cases, jumped at the opportunity to obtain an appellate decision, using Gelb, that would serve as precedent. All as a result of the gravel chosen by the HOA board.