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MARINA PARK PROPERTY MANAGEMENT AGREEMENT_01_LEASE_SUMMARY
*NEW FILE* Marina Park Property Management Agreement 01_LEASE_SUMMARY Date: 09/02/2008 To: Everroad, Glen, Tseng, Evelyn From: Sherine Barakat RE: Marina Park I conducted a review audit on Marina Park's books and records on 8/25/2008 and 09/02/2008 at Bendetti Company's office located at 1176 Main St, Irvine CA 92614. There were specifically some expenses that the City was interested in examining such as Repair and maintenance, property refurbishments insurance health as it appeared higher than normal. The followings summarize the findings of this review: For Gross income, it is Bendetti's practice as explained by Richard Dunn the controller is to include the Gas Recovery in gross income. The gas recovery is the proceed from the gas bill passed as a flat rate from the gas company to the tenants. It is my view as the auditor of the city that the proceed doesn't represent income to the city it is rather an expense that the Bendetti collects and pays to the gas company. The City shouldn't pay any commissions related to the Gas Recovery. In more than one occasion Mr. William Mechem used his personal Visa Card to pay for expenses related to the park. Mr. Mechem provided the Visa statements issued by F&M Bank but failed to provide any receipts to show the detail of the charges and the business relation. In August of 07, the City paid for a new computer for Millie Mechem manager and a new carpet for unit 2F the manager's unit, no prior authorization obtained from the City. 09/02/200B Confidential MARINA PARK MANAGEMENT FEES PAID FOR PERIOD 611107 - 0511310E Jun 2007 1 Jul 2007 1 Auq 2007 1 Sep 2007 1 Oct 2007 I Nov 2007 1 Dec 2007 1 Jan 2008 1 Feb 2008 1 Mar20081 Apr 2008 1 May 2008 1 Jun 2008 1 July 2006 1 Total 5%Comm 2,958.00 2,732.45 2,836.80 2,924.25 2,677.50 2,786.20 2.670.60 I 2.753.00 2,635.80 2,895.40 2,787.20 2788.00 2,740.10 2,74420 38.929.50 Set Fee 3,350.00 3,350.00 3,350.00 3,350.00 3,350.00 3,350.00 3.350.00 3,350.00 3,350.00 3,350.00 3,350.001 3.350.001 3,350.00 3,350.00 46,900.00 Difference 392.00 617.55 513201 425.75 672.50 56380 679.40 597.00 714.20 454.60 562.80 562.001 609.90 605.80 7,970.50 Operating Expenses Janitorial 0.00 0.00 550.00 0.00 180.00 180.00 120.00 180.00 0.00 2,10.81 0.00 180.00 44250 0.00 Landscape Maintenance 1,150.00 1,540.00 1,325.00 1,360.00 0.00 2,300.00 1,150.00 1,150.00 1,150.00 11150.00 11150.00 1,990.00 0.00 1.150.00 Landscape Main - trees 0.00 0.00 0.00 0.00 0.00 1,875.00 0.00 0.001 0.001 0.00 0.00 0.00 0.00 0.00 Pest Control Repairs & Maintenance Repairs & Main - Lighting Property Refurbishments 0.00 12.891.95 0.00 0.00 250.00 436.88 0.00 000 0.00 0.00 3,457.85 0.00 0.00 0.00 2i100.00' 0.00 411,60 411.60 150.00 35.48 _ 0.00 600.00' 411.60 125.00 1,583.04 3,198.26 0.00 411.60 0.00 175.00 0.00 850.00 411.60 125.00 _ 0.001 22500 3s126:00i 0.00 0.00 1,134.65 0.00 411.60 411.60 0.00 500.00 0.00 0.00 411.60 _ _ 0.00 0.00 2,850.90 627.76 0.00 0.00 0.00 0.00 411.60 411.60 0.00 383.28 0.00 0.00 411.60 250.00 1,881.00 0.00 0.00 411.60 684.20 1,717.10 397.57 3,470.77 0.00 0.00 0.00 0.00 0.00 0.00 349.39 0.00 685.00 596.24 730.48 823.40 _ 2,724.77 0.00 000 795.14 0.00 0.c0 0.00 6_94190� 0.00 98.12 0.00 0.00 2,730.00 0.00 78955 0.00 _6,009.11 0.00 323.83 0.00 1,938.94 0.00 0.00 0.00 423.74 2.516.72 323.83 1,980.56 2,730.00 289.42 1,900.06 0.00 0.00 0.00 246.44 2,734.90 545.05 2,744.79 0.00 490.75 1,413.11 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 143.94 76.98 149.74 0.00 0.00 16394 0.00 0.00 0.00 0.00 0.00 275.00 350.99 59.40 275.00 350.99 59.40 275.00 350991 118.80 842.00' 350.99 59.40 464.00 350.99 59.40 464.00 350.99 0.00 464.00 350.99 59.40 464.00 350.99 69.40 464.00 350.99 59AO 464.00 376.39 59.40 464.00 360.22 59.40 520.00 360.22 Office Expense Postage & Delivery 0.00 8.60 94.12 5.67 49.00 0.00 866.37' 10.62 0.00 13AO 0.00 11.20 0.00 0.00 0.00 78.17 0.00 0.00 0.00 0.00 500.06 11.88 11.65 16.89 0.00 0.OD 0.00 11.97 0.00 49.86 0.00 14AO 0.00 18124 13A2 13.95 0.00 58.90 0.00 15.28 0.00 0.00 0.00 9A8 0.00 0.00 000 1036 0.00 0.00 0.00 12.71 " Salaries 2,00000 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,000.00 2,325.00 2,100.00 2,100.00 Payroll Taxes Telephone - Office Training/Seminar 165AO 276.04 0.00 165.40 165.40 165AO 192.34 276.68 190.66 0.00 0.00 0.00 165AO 165.40 165.40 215.00 203.00 _ 203.00 203.00 210.99 173.15 196.61 28326 254.71 238.38" 213.76 293.28 297.13 244.91 209.63 6.00 1,222.89 0.00 0.00 ". 145.00. 0.00 0.00 43900- 0.00 173.15 301.33 0.00 UOhtes-Trash 411.60 471.60 Utilites - Electric 330.84 240.29 UOlifies - Gas 2,349.95 O.OD Utilities - Sewer 397.57 0.00 Utilities -Water 2,151.13 0 00 Taxes - Properly 0.00 0.00 GenerallAdministrative Bank Charg__es table TV � Computer Services Insurance - Health 0 00 5 00 108.54 103 54 59.40 59.40 299.00 275.00 Insurance -Workers Comp 473.23 413.23 Licenses, Permits &Fees 0.00 0.00 Office Supplies 0.00 0.00 CONSULTING AGREEMENT Phis agreement is between The Bendetti Company (Company) and Bill Mecham (Consultant). Bill Mecham agrees to provide consulting services to The Bendetti Company in the form of management services for Huntington Shorecliffs, Marinapark, Rancho Brea and Trail -A -Way. Management services shall be construed as dealing with all issues related to the day -today management of each property, including: 1. Hiring, firing and evaluation of all employees of each property, including determining and approving salaries. 2. Approval of all invoices for timely payment by Company. 3. Establishment of all policies related to management of each property. 4. Communication with park owners. 5. Communication with Company concerning status of each property. 6. Interface with all agencies which have governance over the properties. 7. Interface with all utility companies involved with each property. 8. Other responsibilities as they may become apparent and necessary. The Company will be responsible for the following: 1. Providing all accounting services necessary to meet the management obligations of the property management agreements of each property including creation and distribution of financial statements, depositing of distributions checks per established policies and communication and meeting with Consultant concerning financial condition of each property. 2. Timely payment of all accounts payable for each property. 3. Provision of other basic services such as mail, ordering of forms and supplies through Company accounts (then billable to the appropriate property). 4. Other services as they may become apparent and necessary. Company shall pay Consultant Sixty percent (60%) of all fees collected from each property named above on a monthly basis. The Consultant shall be paid upon Company's receipt of these fees. Consultant shall receive a check equal to 60% of the estimated fees collection on the first of each month with the balance paid on the fifteenth of each month. . Consultant shall be responsible for all of his expenses. However, Consultant shall be allowed to use Company Mastercard credit card for purchases related to the management of each of the properties listed above. This agreement shall be in force as long as there is a management agreement between the Company and any of the properties listed above. In-bo event shall Consultant play any role in the transfer of the management of the properties listed above to another management company. If Consultant no longer desires to provide said consulting services, it shall inform the Company representative of that effect at least twenty (20) days beforehand in writing, and thereafter, Consultant shall not endeavor to provide management services directly to said properties. Company representative shall be Robert D. Bendetti. The above is agreed to this day of �c� , 2003, by: rNT:- �.i�:..I Page 2 of 9 Not Reported in Cal.Rptr.3d Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) r Williams v. Bendetti Management Group Cal.App. 4 Dist.,2005. Only the Westlaw citation is currently available. California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts. Court of Appeal, Fourth District, Division 3, Cali- fornia. Ronald WILLIAMS et al., Plaintiffs and Appel- lants, V. BENDETTI MANAGEMENT GROUP et al., De- fendants and Appellants. Nos. G031578, G031707, G031768. (S uper.Ct.No. 797067). July 27, 2005. Appeal from a judgment of the Superior Court of Orange County, William McDonald, Retired Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part; reversed with directions in part. Rutan & Tucker, Milford W. Dahl; Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, Arthur Brebow, William S. Yee; Greines, Martin, Stein & Richland, Irving H. Greines, Robert A. Olson, Laura Boudmu and Sandra J. Smith, for Defendants and Appellants. Richard I. Singer Law Offices, Richard I. Singer and Elvi J. Olesen, for Plaintiffs and Appellants. SILLS, P.J. OPINION I. INTRODUCTION *1 This appeal arises out of the concerted efforts of the owners and management of a mobilehome park to, well, let's just say extract, new five-year leases from the park's month -to -month tenants."The nub of the case is the owners' and managers' strategy of threatening to (and in some cases actu- ally) raising rents $50 a month until each individual tenant capitulated and signed the five-year agree - Page 1 ment-something, as we show below, which is not allowed under California's Mobilehome Residency Law. (See Civ.Code, § 798 et seq.) That strategy ul- timately resulted in a class action judgment totaling $1.6 million in its various components against the owners and managers of the park, which is the basis of this appeal. The components of the judg- ment were, in round numbers: FNl. "Coerce" and "force" are words with which the management of the park might quibble; no actual force was used, and the only "coercion" was the coercion of rent increases. But "obtain" or "negotiate" are too weak; they do not convey the full power of what the management tried to do. 4191,000 in restitution and interest, -$194,000 in Mobilehome Residency Law penal- ties; -$335,000 for retaliation under section 1942.5; and -$883,000 in attorney fees and costs.FNr FN2. Actually, there were two judgments against the owners and managers, labeled "R-l" and "R-2," hence two of the three appellate docket numbers in the caption of Us opinion. The R-2 judgment, though, was simply a modified version of R-1, and in any event the two appeals have been consolidated. For purposes of readability, the parties in this case will be referred to in generic terms. The mobile - home park FN3, its owners FN4, and the individu- als who supervised or managed the premises FNs will be referred to as "the parkowners" unless the discussion warrants a more specific reference. The plaintiff tenants will be referred to simply as "the tenants." FN3. Lincoln Center Mobilehome Park. FN4. Bendetti Management Group. m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 Page 3 of 9 Not Reported in Cal.Rptr.3d Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cai.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) FN5. James Lawson (property supervisor for Lincoln Center) who worked under Don and Bob Bendetti and Lloyd Mochler. The parkowners present a number of issues for re- view, which may be broadly categorized as follows. First, they argue that no evidence supported a class - wide recovery, therefore 93 of the 108 plaintiffs should not have received damages of any kind. The parkowners argue that these 93 plaintiffs failed to show that they heard of or were influenced by any wrongful threats, did anything that provoked a re- taliatory response by the Park, or even objected to lease terms (specifically an arbitration clause). This argument ultimately fails because of evidence that the parkowners' strategy was aimed at all the park's tenants, and that the parkowners treated all the ten- ants as a group, thus creating the classic common questions of law and fact necessary to a class ac- tion. Second, the parkowners assert that none of the ten- ants established a right to rescind their lease be- cause none of them showed that they would have rejected the lease had it been neutrally offered; ergo the restitution portion of the judgment should be re- versed. This argument fails because the parkowners' lease, on its face, violated the Mobilehome Resid- ency Law, and a ton of testimony was received by the trial court concerning the tenants' dissatisfaction with not only the way the lease was presented to them, but with the lease's substantive provisions. Third, the parkowners argue that as a matter of law, there were no Mobilehome Residency Law viola- tions. Nor, they assert, was there any proof of will- ful conduct essential to the imposition of penalties. We also reject these arguments. The evidence of the plan to keep raising rents $50 a month until capitu- lation amply shows both violation and willfulness. *2 Fourth, the parkowners challenge the $335,000 in damages under Civil Code section 1942.5 [providing for penalties if landlords retaliate against tenants for tenants' exercise of legal rights] FN6 on the theory there was no evidence that any plaintiff met the statutory requirement of showing Page 2 that he or she exercised some legal right and was retaliated against for doing so. (The $335,000 fig- ure was calculated by multiplying $3,100 by each plaintiff.) Since threatening tenants with successive $50 rent increases if they did not sign the new lease was retaliation under the statute, this part of the judgment will stand. FN6. All statutory citations are to the Civil Code unless otherwise indicated. However, there is no legal basis on which to hold the individual agents and managers personally li- able for any damages. The restitution award, the Mobilehome Residency Law penalties, the dam- ages for retaliation under section 1942.5 and the at- torney fees are all matters that are properly attrib- uted only to the park and its owners, not its agents and managers. The agents and managers did not stand to benefit from the strategy of forcing new leases under the threat of successive $50 rent in- creases; only the park and its owners so stood. We will therefore reverse the judgment to the extent that it allows such personal liability against the agents and managers, with directions to enter a new judgment precluding any personal liability on their part. The prevailing class tenants have also filed a cross - appeal, (1) attacking the dismissal of certain "passive" class members for not responding to in- terrogatories, (2) claiming that they should have been awarded more attorney fees, and (3) claiming that a reduction of penalties awarded under the Mo- bilehome Residency Law was unfounded. The first of these contentions has merit; one of the benefits of a class action qua class action is that passive class members do not have to worry about discovery at all.This case involves dismissals that took place prior to the enactment of rule 1858 of the California Rule of Court, so we are not con- cemed with its operation. Under the pre -rule 1858 law it is clear that only in rare cases can discovery be propounded to passive class members (e.g., Spoon v. Superior Court (1982) 130 Cal.App.3d 735), and the discovery cannot simply be a matter © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://Web2.westlaw.comlprintlprintstreatn.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 Page 4 of 9 Not Reported in Cal.Rptr.3d Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) of ascertaining individual damages or decreasing the size of the class. (Danzig v. Superior Court (1978) 87 Cal.App.3d 604, 613). Here, the use of discovery became just that -a de facto mandatory "opt in" procedure. The other two contentions, however, are unavailing. II.BACKGROUND Lincoln Center is a mobilehome park in Cypress, Orange County. The park has 305 spaces for mo- bilehomes. The city did not have rent control at the time any of the following events transpired. Ten- ants in the park own their homes but rent lots from the park. In 1996, Jim Lawson became a manager/supervisor for several mobilehome parks owned or managed by the Bendetti Management Group. One of Lawsods assignments was to manage Lincoln Cen- ter. Lawson hired John Sherry to work as the on-sitemanager of Lincoln Center until July 1999. The parkowners claim Sherry was brought in for the purpose of cleaning up the mobilehome park, thereby increasing its value. *3 Prior to Sherry's reign, when tenants moved in, they signed a lease that was renewable on a yearly basis. The parkowners gave rent increases some- times, but did not seem to do so in a regular, specif- ic manner. After Bendetti obtained and began offering a new lease to incoming tenants, he decided to offer the new lease to existing homeowners also. Lawson, the employee of Bendetti and manager of the mo- bilehome park, obtained a form lease from attorney Gregory Beam. Lawson and Bendetti approved this new lease after making minor changes and did not inquire as to its compliance with the Mobilehome Residency Laws. The next time Lawson or Bendetti consulted with Beam was when this suit was filed in July 1998. In April 1997, the parkowners sent the first lease notice to tenants asserting they were offering a new lease. The notice stated that if a tenant did not sign the lease the tenant would stay on month -to -month Page 3 and may get a rent increase every month with 90 days' notice. Water and trash would be charged sep- arately with no comparable rent reduction for those who remained month -to -month. Six lease notices were delivered in a staggered manner, all but one reiterating to the tenants the possibility of their rents getting raised if the lease remained unsigned. Tenants were expected to go to the office at the mo- bilehome park and obtain the lease. When anyone inquired about the lease or voiced objections, Sherry would tell them that all parts of the lease had to be initialed, it was non-negotiable, and $50 rent increases after 90 days' notice would befall all those bold enough to not sign the new lease. Some tenants got together, contacted Golden State Mobilehome Owners' League, and started up their own chapter. Their purpose was to discuss their ob- jections to the lease and Sherry's, less - than -diplomatic conduct. Eventually, a tenant's committee was granted a meeting with Lawson, the manager of the park, where they voiced their prob- lems. Lawson told them that if they didn't like the lease choices offered, they could stay month - to -month tenants, but in that case the park could raise the rent "any time and by an unrestricted amount after a 90-day notice." By this time, the parkowners (through Sherry) had issued numerous rent increase notices. Lawson later wrote a letter to the lease committee where he reit- erated his unwillingness to change the lease or even to tell Sherry to relax a little. This litigation and the $1.6 million judgment en- sued. III. THE PARKOWNERT APPEAL A. The Class Action Issue Itself The initial certification of this case as a class action passed muster before trial in competing certifica- tion and initial decertification motions. The parkowners, however, argue that the evidence at tri- al was so different as to what Sherry and the other defendants told class members and how each re- © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/printlprintstream.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 Page 5 of 9 Not Reported in Cal.Rptr.3d Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) sponded, that the class action was defeated. Not so. 1. General Principles for Class Actions `Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification."(Linder v. Thrifty Oil Co. (2000) 23 CalAth 429, 435.)To sustain a class action there must be an ascertainable class and a well-defined community of interest in the ques- tions of law and facts. *4 The community of interest requirement has three factors to consider: (1) the predominant common questions of law and fact; (2) the class representat- ives whose claims are typical of the class, and; (3) who can adequately represent the class. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) However, class member claims do not have to be identical. (B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341, 1347.)Minor variations in each class member's circumstance and even the possibility of different remedies for differ- ent groups of class members do not defeat certifica- tion. (Daniels v. Centennial Group, Inc. (1993) 16 Cal.AppAth 467, 471-173.)Indeed, even fraud claims have been maintainable in a class action and individual reliance need not be shown if identical or similar misrepresentations are made on a class -wide basis. (Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 363;Collins v. Rocha (1972) 7 Cal.3d 232, 237-238;Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.AppAth 952, 960-964.) And, of course, one of the main benefits of class ac- tions is that passive members of the class do not have to participate in the litigation. (Earley v. Su- perior Court (2000) 79 Cal.App.4th 1420, 1434 ("The very purpose of the class action is to 'relieve the absent members of the burden of participating in the action.' ") Thus passive class members are entitled to "sit back and allow the litigation to run its course...:' (Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 810.) 2. Application to this Case Page 4 The record supports the trial judge's decision to continue the proceeding as a class action by show- ing that the $50 rent increase strategy was applied to all or virtually all of the residents of the park. Tenants generally were reminded verbally and in writing that if they chose to reject the 5-year lease the parkowners could raise the rent $50 on 90 days' notice. And, those tenants who did not sign the new lease on schedule did indeed immediately receive $50 rent increases. Thus it was not surprising that 98 percent of the tenants signed the new lease, des- pite testimony that a number of tenants voiced ob- jections to several provisions in the lease. In Rich v. Schwab (1984) 162 Cal.App.3d 739, a class action suit was brought by mobilehome park tenants regarding retaliatory rent increases, the court described the class action as the "paradigmatic class action." (Id. at p. 745.)This case is similar. The trial court could reasonably in- fer from the written and verbal threats of successive $50 increases, plus the repeated and immediate in- creases in the rent of tenants who did not sign the new lease, that each class member was the target of a concerted effort to replace their existing month - to -month tenancies with the same (problematic, as we show below) five-year lease. That alone surely is enough to support the trial courts decision to continue to proceed as a class action -note that each class member was being targeted the same amount ($50 increments) to pressure him or her into agree- ing to the same five-year lease. The common issues of law and fact virtually leap off the page. B. The Rescission -Restitution Issue *5 The parkowners argue that the portion of the judgment for rescission and restitution must be re- versed because there the evidence showed that the tenants would have accepted the new leases any- way. Not so. There was testimony from a number of ten- ants that they would not have accepted the lease save for the pressure of the threat of $50 rent in- creases. There was also much in the leases that would give rise to the reasonable inference that the 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 Page 6 of 9 Not Reported in Cal.Rptr.3d Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) tenants would not have accepted those leases on their own terns, but only because of the threat of the successive $50 rent increases. For one thing, the new 5-year leases contained pass -through provisions for property taxes, capital improvements, capital maintenance and uninsured losses, which, in effect, made the 5 percent annual rent cap seem deceptively low. On top of that the lease provided that tenants would pay separately for trash and water. For another, there was a provision in the lease for- cing residents to waive any rights as to the current condition or defects of the space and the common area facilities -hardly the sort of thing tenants would agree to unless they were under some sort of pres- sure. The lease also forced a waiver of jury and man- dated arbitration, which violated the Mobilehome Residency Law, specifically Civil Code section 798.25.5. Section 798.25.5 provides that a rule or regulation unilaterally adopted and implemented without the homeowners' consent, and which pur- ports to deny homeowners their right to a trial by jury or mandates binding arbitration of any dispute between the management and homeowners, shall be void and unenforceable. To the same effect is section 798.19: "No rental agreement for a mobile - home shall contain a provision by which the homeowner waives his or her rights under the ... [Mobilehome Residency Law].... Any such waiver shall be deemed contrary to public policy and void." Given that the lease deprived tenants of rights they would otherwise have had under the Mobilehome Residency Law, we must agree with the trial court that the tenants would hardly have accepted the new leases on their own. And in fact there was evidence that the threats of rent increases and the actual increases were noised about whenever a class member complained of the high handed manner in which he or she was being treated, and as one would guess, the parkowners' tactics were the com- mon knowledge of the tenants. Several tenants re - Page 5 fused to sign the new lease and then would get a $50.00 rent increase notice. It is a reasonable infer- ence -that the tenants who were so targeted were tar- geted as examples to others, and not merely in their capacity as individuals. C. The Compliance With the Mobilehome Residency Law Issue 1. Rent Increases Under the Mobilehome Residency Law, rent re- quired of month -to -month tenants can be increased on 90 days' notice. (§ 798.30.) However, when long-term leases pursuant to section 798.17 are offered, as they were here, and if a tenant elects an agreement for 12 months or less, then the month - to -month rental agreement "shall contain the same rental charges, terms, and conditions as the rental agreement offered pursuant to subdivision (b), dur- ing the first 12 months ...... (§ 798.17 subd. (c); § 798.18.) In plain English, there can be no discrim- ination against month -to -month tenants for the first 12 months when long-term leases are offered. *6 There is no way the statutory language can be squared with the idea of multiple $50 a month rent increases during that first 12 months. While there is no rent -control on mobile home parks as such, the requirement of offering to month -to -month lessees the same terms as are offered to long-term lessees operates as a de facto rent increase delay provision. Neither Vance v. Irlla Park Mobilehome Estates (1995) 36 Cal.AppAth 698, 702, nor Dills v. Red- woods Associates, Ltd. (1994) 28 Cal.AppAth 888, 892, relied on by the parkowners, stand for the pro- position that parkowners can charge month - to -month tenants rent increases when those tenants have just been offered a 12-month lease. 2. The Lease Itself We have already mentioned that the waiver provi- sions of the lease violated provisions of the Mobile - home Residency Law. 3. The Appropriateness of Penalties Under the Mo- © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstrearn.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 Page 7 of 9 Not Reported in Cal.Rptr.3d Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) bile Home Residency Law Penalties may be imposed under the Mobilehome Residency Laws only if the violation is "willful." (§ 798.86.) We note preliminarily that there is at least some authority to suggest that "willful" does not necessarily entail a specific purpose to violate the law, merely to intend the act. (See Patarak v. Willi- ams (2001) 91 Cal .App.4th 826, 829-830 ["Willful conduct does not require a purpose or specific in- tent to bring about a result ... it does require more than negligence or accidental conduct ... [¶] ...'The word "willfully" when applied to the intent with which an act is done or omitted means with a pur- pose or willingness to commit the act or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.' [Citation.]" That said, this case does not present the act -result dichotomy because here there was evidence on which the trial court could predicate a finding that the parkowners actually intended to flout the law, rather than merely require five-year leases. Spe- cifically, after the tenants retained counsel, the parkowners were apprised of the various violations of the Mobilehome Residency Law already de- tailed. Yet the parkowners persisted. The inference is that they continued their strategy, despite the pro- visions of the Mobilehome Residency Law. Lawyers, of course, typically make all sorts of as- sertions to their adversaries, so it does not necessar- ily follow that just because the parkowners were told by tenants' counsel they were violating the Mo- bilehome Residency Law that they were bound to believe it. The irony here is that at trial the parkowners asserted the defense of advice - of -counsel, but based on the idea that counsel pre- pared the lease. The parkowners apparently were not willing to pay their own counsel to evaluate the merits of the assertions concerning the (alleged) vi- olations of the Mobilehome Residency Law. That selective ignorance yields the inference that the parkowners knew there was at least a probability they were violating the law. Page 6 D. Section 1942.5 Retaliation *7 Another component of the judgment was $335,000 for violation of section 1942.5, which is not part of the Mobilehome Residency Law, but which governs lessor -lessee relations generally. (The court found three violations per class member, for $3,100, and multiplied that by the members in the class.) The idea of the statute is that if a lessor retaliates against a lessee for the exercise of rights otherwise afforded by the chapter of the Civil Code giving those rights (chapter 2 of tide 5 of part 4 of division 3), the lessor is subject to a penalty for each viola- tion. Section 1942.5 is to be liberally construed to effectuate its purpose and applies to threats of rent increases. (Barela v. Superior Court (1981) 30 Cal.3d 244, 251.) The parkowners' major argument at this point is es- sentially a re -run of the attack on the class certifica- tion. They argue that all class members must testify to the retaliatory act and to their personal response to it, and because only 16 were allowed to testify at the trial court, no evidence may be implied as to the remaining class members. We must disagree for reasons given above. There was plenty of evidence from which the trial court could reasonably infer that every member of the class was targeted by the rent increase strategy, either directly (those who did not sign) or indirectly (those who got the message from what was happening to others and knuckled under to the new lease). E. The Individual Liability Issue However, there is simply no basis on which to pre- dicate personal liability of individual park man- agers or agents in this case. Restitution and rescis- sion inherently involve the relationship between the tenants and the park itself -it's the park and owners who were going to benefit from the leases, not their agents or managers. Likewise, the agents and man- agers were only operating on the owners' behest in pushing the $50 rent increase strategy. And, finally, there is no provision in section 1942.5 for anyone other than "lessors" to incur a penalty. We must © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://Web2.westlaw.comlprinttprintstream.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 Page 8 of 9 Not Reported in Cal.Rptr.3d Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) therefore reverse the judgment to the extent that it provides for any personal liability on the part of the agents or managers, as distinct from the park or its owners, and direct entry of a new judgment recog- nizing that the agents and managers are not re- sponsible for the judgment. IV. THE TENANTS' CROSS -APPEAL The tenants as cross -appellants raise three issues. They assert that the trial court erred when it (1) dis- missed over one hundred (110 to be specific) pass- ive class members for failing to respond to written discovery; (2) failed to enhance plaintiffs' award of attorney fees, and finally (3) reduced the award of penalties for willfulness by $2,500 for three viola- tions because it believed it had wrongfully applied section 798.86 retroactively. A. The Dismissal of the Passive Class Members 1. Appealability The threshold question is whether the dismissals can even be the subject of a cross -appeal, or wheth- er they are subject to the rule that a judgment fully disposing of claims between parties is a final, ap- pealable judgment. If the latter, then the time to ap- peal expired well prior to the notice of cross -appeal in this case. *8 The answer, however, is simple. This is a class action -one class action, yielding one class action judgment. The erroneous ascertainment of the num- ber of members of the class cannot be equated with the otherwise immediately appealable dismissal of individual claims. To treat the dismissal of passive members of a class as the equivalent of a judgment of dismissal of their individual claims is to ignore the fact that their claims were part of a single ac- tion, not a separate action consolidated with others. 2. Appropriateness of Discovery In the First Place As noted above, one of the main benefits of class actions is that passive members of the class do not have to participate in the litigation and can allow the litigation to ran its course. (Earley v. Superior Page 7 Court, supra, 79 Cal.AppAth at p. 1434;Phillips Petroleum Co. v. Shutts, supra, 472 U.S. at p. 810.)The whole point of a class action is that pass- ive members shouldn't have to participate in litiga- tion and to the extent that they are, destroys the ef- fectiveness of the class action as a procedural device. (Earley, supra, 79 Cal.AppAth at p. 1434.) In extremely rare cases, discovery of passive mem- bers has been allowed. (E.g., Spoon v. Superior Court, supra, 130 Cal.App.3d 735). But those in- stances are -indeed, by definition must be -extremely rare. In rejecting discovery of passive class mem- bers (in a limited partnership class action case), the court in Danzig v. Superior Court, supra, 87 Cal.App.3d at page 606 set out a fairly stringent set of tests, including that such information could not be obtained from other sources. And the court was quite plain that ascertaining the amount of each classmembees claim was not a proper subject of a class action. The barrier was penetrated in Spoon v. Superior Court, supra, 130 Cal.App.3d 735 because discovery was necessary to separate out class claims from unrelated and non -class claims. (See id. at p. 742.)(In Spoon, the plaintiff class was made up of the homeowners of the Sierra Towers condominiums, who suffered from an inadequate heating and air conditioning system. The class ac- tion entailed both fraud and warranty claims, and the court allowed the discovery to separate out indi- vidual claims from class claims.) Here, there was no need to propound discovery to separate out class from non -class claims. It is a mis- characterization to say that this class action was based on the idea that individual class members were "bullied, harassed, and/or intimidated" into the signing the leases -the key point is the notices of $50 rent increases, a discrete event for which no discovery from passive class members was neces- sary. These notices were identical. Essentially, in allowing the discovery the trial court abused its discretion by agreeing with the defend- ants' theory that the case was not really a class-ac- tion based on uniform rent increase notices -a dis- crete action applicable to all members -but was an © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://Web2.westlaw.comlprintlprintstream.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 Page 9 of 9 Not Reported in Cal.Rptr.3d Page 8 Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) (Cite as: Not Reported in Cal.Rptr.3d) amalgam of individual claims which had to be as- The judgment is affirmed except: certained (and possibly defeated) on a member - by -member basis. The abuse of discretion is high- (1) to the extent that it makes the agents and man - lighted by the practical effect of the discovery, agers of Lincoln Center liable, and to that extent it which was, contra Danzig, to truncate the class by is reversed, with directions to eliminate that liabil- 110 members. ity: B. The Attorneys' Fees Issue *9 Pursuant to sections 798.85, 1942.5, subdivision (g) and the attorney fee provision in the lease, the tenants requested attorney fees. The court awarded $852,578 in fees based on the tenants' counsel's ac- tual hours spent at their actual hourly rates. The tenants now assert that the court improperly failed to compute a lodestar figure using market hourly rates, which would have substantially increased the fee award. They also requested that the court en- hance their fee by using a 1.4 multiplier. The court, however, ruled that the market rate evidence was inadequate and that enhancement was not warran- ted. When attorney fees are appropriate, the amount is typically a matter of trial court discretion. (See PLCM Group Inc., v. Drexler (2000) 22 CalAth 1084, 1088.)Here, counsel for the tenants received fees equivalent for every hour billed at their normal billing rate, not including non -billable hours (such as those hours billed for obtaining punitive dam- ages and penalties). That is surely within the bounds of reason. C. The Retroactivity Issue Finally the tenants challenge the $194,000 Mobile - home Residency Law penalties as too low. We can- not agree. The trial court reduced an original higher penalty award in order to conform to the $500-maximum-per-violation cap that was in effect in 1997, when the court found the Mobilehome Residency Law violations occurred. The idea that the violations were "on -going" from 1997-2001 will not hold water. The essence of the violation (the $50 scheme) was hatched and implemented in 1997. V. DISPOSITION (2) to the extent that it is based on the dismissal of 110 passive class members, and to that extent it is reversed with directions to conduct further proceed- ings not inconsistent with this opinion. In the interests of justice the plaintiff class will re- cover its costs on appeal. WE CONCUR: O'LEARY and ARONSON, JJ. Cal.App. 4 Dist.,2005. Williams v. Bendetti Management Group Not Reported in Cal.Rptr.3d, 2005 WL 1785965 (Cal.App. 4 Dist.) END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprint/printstream.aspx?rs=WLW7.09&destination=atp&prft=H... 10/02/2007 EMPLOYMENT AGREEMENT Marina Park through it's Agent Bendetti Management Group (hereinafter referred to as "Employer" and Douglas A.E. Wylie and Valerie Wylie (hereinafter referred to as 'Employee") in consideration of the mutual promises made herein, agree as follows: 1. PROBATION PERIOD AND TERMS OF EMPLOYMENT: Employee is on a ninety (90) day probation period to commence upon the date of this Agreement. During this probation period Employer shall provide Employee assistance and on-the-job education in relation to the basic duties of the position of mobilchome park manager. At the end of said ninety (90) day trial period Employer shall provide Employee with an evaluation of performance. However, Employee recognizes and agrees that employment hereunder (including but not limited to the "probation period") is on an "at Will" basis and employment can be terminated by either party. 2. GRANT OF LICENSE: Employer hereby grants Employee a revocable, non -possessory license and right (the "License") to use and occupy the following described premises ("Premises"): The mobilehome located in Marina Park at 1770 West Balboa Boulevard, Space "Manager B" Newport Beach, California and all contents subject to the terms and conditions herein contained. Said occupancy and possession may be terminated by Employer at any time and any rights of occupancy or possession shall automatically terminate upon termination of the employment relationship, it being understood and agreed between the parties that lodging and the utilities (gas, water, sewer, electricity) which service that lodging are being furnished as a condition of employment. 3. TERM OF LICENSE: The License shall commence immediately upon execution of this Agreement by both Employer and Employee. The License shall terminate immediately when Employee employment by Employer ends, for any reason, or when Employer notifies Employee that the License has been revoked for any reasons, whichever shall first occur. 4. USE OF PREMISES: The Premises shall be occupied by no more than two adults and two children. Employee may not keep any dog, cat or any other pet in or about the Premises, without the prior written consent of Employer, which consent may be withheld for any reason. Employee hereby acknowledges and agrees that the License herein granted shall at all times be subject to the Park Rules and Regulations as they may now exist or as they may be amended or modified from time to time by Employer. Employer shall retain the control of the right of action to the Premises at all times during the term of the License. 5. RELATIONSHIP: Employer and Employee agree that it is their intention to create hereby the relationship of licensor -licensee, and not to create the relationship of landlord -tenant. Employee hereby acknowledges that Employee has not acquired a tenancy interest in the Premises, nor any rights under the landlord -tenant laws of the State of California. 6. NO ASSIGNMENTS: Employee understands and agrees that the License herein granted is personal to Employee only and that it cannot be assigned, transferred or conveyed by Employee. Any attempt by Employee to assign, transfer or convey the license shall be null and void and shall, at Employer's option, operate to terminate the License immediately. 7. EFFECT OF TERMINATION: Employee agrees that within five (5) days after termination of the License, for any reason, Employee and all other occupants will vacate the Premises and return the Premises keys to Employer or its Agent. 8. COMPENSATION: Employer and Employee agree that the lodging and utilities being furnished by Employer to Employee constitute part of the compensation of Employee to be credited towards the wages of the Employee in accordance with the agreement between Employer and Employee. In addition, Employee is to receive a monthly salary of One Thousand Three Hundred Dollars ($1300.00) total compensation which will be divided equally between Douglas A. E. Wylie and Valerie Wylie. The regular pay periods are on the First and Fifteenth of each month. In the event Employee is terminated, Employee understands and agrees that he will not receive his final paycheck from Employer unless and until he has vacated the Premises and returned the Premises keys to Employer or its Agent, and returned all furniture, appliances and furnishings. Furnishings must be returned in the same condition as when Employee was provided the Premises. Any missing furnishing, furniture, and/or appliances shall be repaired and/or replaced by Employee. In the event that the amount of the final paycheck of the Employee is insufficient to comer 2 said -replacement and/or repair, then Employee shall immediately reimburse ,Employer for said amount. 9. INDEMNITY: Employee hereby agrees to defend, indemnify and hold Employer, its agents, servants and employees harmless from and against any and all claims, liabilities, obligations, judgments, penalties, costs and expenses arising out of or related to any and all loss or damages to any and all property of for injury (including death) to any person arising from or related in any way to the License and/or the use of the Premises by Employee, his guests, relatives or invitees. 10. ATTORNEYS' FEES AND COSTS: If,any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and any other necessary disbursement. AGREED AND SIGNED THIS 10 4 DAY OF AUGUST, 1993 E GIPLOYERb1;CEWLOYER'S AUTHORIZED AGENT M ' SAN PEDRO FORKLIFT, INC. 16:594 PH.M-832-2724 1861 N. GAFFEY ST., STE. E ' SAN PEDRO, CA 90731 cj !�i - 90-g582-1222 PAY DATE TO THE ORDER OFDOLLARS p USBANK FOR 1 ! / O W' BOW W 81yct / L) A— / nr 9'Oi6594(('-4:1222358211: L654002021341i' ru F" {OFFICIAL. USE 0 M Postage $ m [� Certified Fee C3 Return Receipt Fea Postmark Here p (Endorsement Requued) t7 EM Restdcted Oellvery Fee (Endorsement flequin:d) C3 fll Total Postage & Fees $ to p Sent To a---------------------- Stree,Apo No.; --------•-------•------•-------------------- C3 orPo Bar No. O................................................ LZ 1PS Form 3800, January 2001 vic-'&d do rtochv+-+ B�Zo�o� r I I I I 1 I i I CITY OF NEWPORT BEACH ADMINISTRATIVE SERVICES Revenue Division September 22, 2008 Mr. Robert D. Bendetti President The Bendetti Company 1176 Main Street, Suite 100 Irvine, California 92614 Mr. Bill Mecham 1770 W. Balboa Blvd., Unit 2F Newport Beach, CA 92663 Re: Agreement by and between The City of Newport Beach ("City") and Bendetti Management Group ("Agent! ), dated January 22,1998 ("Agreement") — Audit Findings Dear Mr. Bendetti and Mr. Mechem: On August 25 and September 5, 2008, Sherine Barakat conducted a limited review of the financial records and receipts related to the Agreement at The Bendetti Company's offices. The following are the findings which precipitated from that review. Insufficient Detail/Documentation: Many of the expenses related to the Marinpark were paid for by Mr. Mechem's personal F&M Visa card. The Visa card statements were provided as the only backup for the expenses listed In Mr. Mechem's monthly statement to the City, but such statements provide insufficient detail for such expenditures. Although Mr. Dunn, the controller In Bendetti's accounting department, requested Mr. Mechem for proper documentation, he has not yet received such documentation. Please provide additional documentation, including but not limited to, invoices, descriptions (as detailed as possible) and receipts, for the following items: June 2007 - $85.00: Millie Mechem August 2007- $485 00: F&MVisa October 2007—$7817: F&MVisa November 2007- $711.46: F&M Visa - "Renaissance of Hollywood" November 2007-$495.00: F&MVisa -"WMA" February 2008 - $85.00: Connect Plumbing February 2008 - $145.00: F&M Visa - "WMA" March 2008 - $181 24: F&M Visa May 2008 - $439.00: F&M Visa - Western Manufactured Housing Communities Association 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658-8915 Telephone: (949) 644-3141 • Fax: (949) 644-3073 • www.city.newport-beach.ca.us Please provide all AT&T bills for the entire period June 07 to June 08. Scope of Agreement: Capital Improvements: Section 3(g) of the Agreement provides that Agent shall ".,. Manage, operate and maintain the Park, including, but not by way of limitation:... (g) the administration, management and financing of capital improvements to the park which may be approved by owner and which have a total cost of $10,000 or less." Please describe the exact nature of the following expenditures and confirm that Mr. Mechem received prior authorization from the City: June 2007 - $6,819.39 Team Underground performed "preventive work" June 2007 - $2 257.56: Team Underground: Removed and replaced light fixture with pagoda light August 2007 - $2,822.00: Tears Underground: Removed and replaced light fixture with pagoda light December 2007 - $850.001 Bostick Company Asphalt Paving: Installed (1) speed bump. February 2008 - $2 822.00: Team Underground: Removed and replaced light fixture with pagoda light April 2008 - $550.00: Nowlin Fence Expenditures in Excess of $500: Section 5 of the Agreement states: "Agent shall obtain City's approval for an expenditure in excess of $500.00 for any one item, except monthly or recurring operating charges and/or emergency repairs in excess of the maximum, if in the opinion of the Agent.such repairs necessary to prevent additional damage and/or liability or a greater total expenditure or to, maintain services or conditions to the tenants as called for in their tenancy." Please describe the exact nature of the following expenditures, and confine whether Mr. Mechem received approval from the City, or explain how such expenditures were for emergency repairs: June 2007 — $3,730.00: F&M Visa: The Mobile Remodelers and Pacific Ocean July 2007 - $531.00: F&MVisa August 2007 - $2.100.00: Northwind Management October20T 07-$600.00: Myers Construction January 2008 - $1 134.65: Myers Construction April 2008-$1591,52• Myers Construction April 2008 - $709.38• Garret Plumbing Outside Scope of Agreement: The Agreement permits Agent to pay employee salaries, at rates authorized by Owner, pay operating expenses incurred through the "renting, servicing, maintaining, or repairing the Park and such additional expenses in Connection with the Park as may be authorized by Owner, and deduct Agent's fee from the gross revenues collected from the Park. However, the following fees were also deducted, which the City believes is outside the scope of the Agreement. Please explain how the following expenditures relate to the above -described allowed deductions: August 2007- $866 37• F&M Visa - "New Computer' December 2007 - $500.00: Millie Mechan & Martin J. Wang February 2008 - $150.00 Ruben Griffin "Painting work at unit 5E - Larry Davis". Calculation of Agent's Fee Mr. Richard Dunn, the controller for the Bendetti Company, explained that Gas Expense Recovered is customarily included within the gross income. However, the Gas Expense Recovered is not income to the City. It is an expense which the Bendetti collects to pay the Gas Company. The City believes that the Gas Expense Recovered amount has been inappropriately included within the Gross Income, and therefore the Agent's commission has been incorrectly calculated. Unless the Bendetti Company can explain under what accounting basis the Gas Expense Recovered should be included in gross receipts, then the Agent's commission should have been as follows: Commission Paid Calculated Commission Variance (+/ -1 June 07 2958.00 2898.60 59.40 July07 2732A5 2612.15 120.30 August07 2836.80 2775.90 60.90 September07 2924.25 2864.85 59.40 October07 2677.50 2622.50 55.00 November07 2786.20 2729.00 57.20 December07 2670.60 2554.70 115.90 January 08 2753.00 2695.80 57.20 February 08 2635.80 2772.80 (137.00) March 08 2895.40 2836.00 59.40 April 08 2787.20 2730.00 57.20 May 08 2788.00 2731.90 56.10 June 08 2740.10 2684.OQ 56.10 Please send all the above -requested information to my attention. Thank you very much for your attention to this matter. Sincerely yours, Evelyn 9 Income Contract Administrator 949-644-3153 etseng(o)citv.newport-beach.ca.us cc: Sherine Barakat Glen Everroad Dave Kiff CITY OF NEWPORT BEACH ADMAITISTRATIVE SERVICES Revenue Division August 1, 2008 Mr. Bill Mechem 1770 W. Balboa Blvd., Unit 2F Newport Beach, CA 92663 Re: Agreement by and between The City of Newport Beach ("City") and Bendetti Management Group ("Agent"), dated January 22,1998 ("Agreement") Dear Mr. Mechem: As you know, we are currently working on the new agreement between the City and Agent. For purposes of that agreement, we have been asked to clarify exactly what operating expenses should be paid from the gross revenues of Marina Park. In order to do so, we reviewed the monthly net revenue statements for the past year. Please send us more information regarding the following categories and why such expenditures should be included as operating expenses, and therefore deducted from the gross revenues: Cable TV Computer Services Insurance — Health and Workers Comp (City staff was unaware that insurance would be included as operating expenses under the original Agreement.) Training/Seminar During our review of the monthly statements, we noted some expenditures that require additional clarification. Section 7(b) of the original Agreement allows City to inspect Agent's books at any time. Sherine Barakat, our Revenue Auditor, will be calling you to set up an appointment to obtain additional detail about those expenditures. You may also call Sherine at 949-644-3143, Please send the above requested information at your earliest convenience. As always, feel free to contact me if you have any questions or comments. Sincerely yours, Evelyn Tseng Income Contract Administrator 949-644-3153 cc: Sherine Barakat Glen Everroad Aaron Harp Dave Kiff 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658-8915 Telephone: (949) 644-3141 • Fax: (949) 644-3073 • www.city.newport-beach.ca.us From: 949 723 0159 Page: 1/1 Date: 9/312006 4.02:28 PM 50117HERN C4LIFORNIA E D I S O Na P.O. Box 30D Rosemead, CA 91772-0oot M EO/S0NM-TCRNA710NA1,%Comymy %Vww.sce.Oom For billing and service Inquiries call 1-800590-7788, 24 hrs a day, 7 days a week Date bill prepared: Aug 20'08 Your electricity bill NEWPORT BEACH, CITY OF f Page 1 of Customeraccount 2-01281.0628 1176 MAIN ST 100 IRVINE. CA 92614.6767 Your account summary Amount of your last bill Pa mentwe received on Au 04'08-thank $224.09 u o alance orwar ,$2240y Your new charges $0$0 ,00 Total amount you owe by Sep 8'O8 $229 _ $217.29 Summary of your billing detail Service acceunt 3.021.5836.52 Service address Billing period Your rate INewcfierges 1770 W BALBOA BLVD 2E Jul 17'06 to Aug 15'OS NPORTBCH CA DOMESTIC $738 E 16 ^ 2oe2. 5100•IfTIL1TIES 3-001-1522.09 1713 W BAY NPORTBCH CA Jul 17'08 to AUg 15'OS GS,1 , I rfe, tJ CUp7 $20991 -129• ca+v..ao'ol 9wfoc •02000 5+wicd book rr. 199). L.DOC473' .,p do am J+• 44wic Nana QJQ4-C" cho•9es . $217.29 4few 1. -Pr rnrrdnxol iht NHS w C%r* n 4+J9 acc.+ MS 200�. p..•+ Kn.+r #AV +hi 99 01 •lira b•11. _yl OasJ 1G.w w,y i'hf Moo,�1+ill+tc9 . .O 9h Chcri Carroll • 0• w000+rrrl excou+14C . It?•971. 51t•4 She aria kw3 loco+for, mdv #. 00 -io Nay+ &,, 0 *ea 4se rne+5., TP yw 4u47 nff rnpH 9�44oll rnd A�vr} 4 me oFP. Teehn•a'er Cwld mee4 -1 y 4h*a - j.w Feaplo cold probwbry da •tire gongs fhMg This fax was received by FAX•CNB on Line 2 from 949 723 0159 03/14/2006 23:54 19497230159 MECHAM PAGE 02/05 ' SBAF+idfi�c`,dA.e°F.�Y6T3Tt:11S5��.:i::::: ;:• :..r,tr,i;,,.. .. • l., f ny SOUTHERN CALIFORNIA PD. Box 300 Your electricity bill E D I SO Ne Rosemead, CA J 91772-OD01 An EDISON INTERNATIONAL® Coopntty www.sce.com NEWPORT BEACH, MY OF I Page 1 of 8 ForbUlln afidserv�ejrigWtles;i {F "'•" :" :i'; Usfattleraccount.: ;; ::i:'::• ;;�•,.;:. calla•8tl0-95077fi8..24brs'aday,'7.,deY�'A'Week,;'�"•. •• .t•: :ii:'s�:,'�, Date bilt'prm ared,;. i 1'08 t' � 178 MAIN ST 100 NVINE, CA.92G1A 5767. i :'i Your•account'summary,. Amount of Your last till) Past due amount "ffi217.29 . 47.29 : .. � '� fir• !�"':. : I ; , •:,: ..;.:.: ' Your new charges' 9:5 " 'v Late pa ygientcharge.. _ $1.95 ... �+ _, :,:`•�}`�-.,, . (Q') Total amount you owe 4466.82, Summary of your billing detail Service account Service address Billing period Your rate Now charges 3-021-%36.52 1770 W SALBOA BLVD 2E aug 16'08 to Sep 16'08 DOMESTIC $8.,19 510D-LIT11-11 ug 15,03 to Sep 16'08 GS-1 $241.39 3.001-1522.; Company: invoiconate. - ry 249.65 ' Invice#: Company: i" �y Vendor #: ,(A1M Invoice AMC Invoice Date: � d Inoivcr4. g {,"j ■ — 5uite/S # AcctName Amount Vendor#: "4`""�;lyw r1 Invotce Amt: �i ice— • A rovedt �� :j return the payment stub below wllh yov peymela and make your check payablo to Southern California Mean, "`•you want to pay In parson, cog 1-800.74'% oe hx locations, or you can pay online atwww4o.com. 03/14/2006 23:54 19497230159 MECHAM PAGE 03/05 ,, i..,�tnY��•''i''.�'.;�:�M�',�i:i.;�:::rti'i695�I�1i •'yL :1: t,'; )li!t l• JMTJ ESQHFRN I SION® MJ An ED7S011,rNTERNA770NAL® Cmp-W :..,; � � ��tVica�dr�resa:: ', •' • •�17'704V�$ALBPA'.g,L•VD'2E� NPO6CH,:CA• 92$63• " Roidifh` outage Group X999 ; NEWPORT BEACH, CITY OF i Page 3 of 8 `Go pare the electricitOr'you,:are'.using : r .. .. • • . •-dur.ctRr@ntread for meter 1-451687.-Sep 16,08 13470 . Ydur•nexrmeter. read wlllbe;on6'i$tiout'Oct'17"08.'. ;'.Ybur - Autl 15°68 t r84b7• •' , Tatel; ecUicity:you used this month In kWh 63 Your daily average electricity usage (kWh) 2 Years ago: 1.77 Lastyear: NIA This year:1.97 tar tall B.aar a • No data evoiiable siptla S.pW W-0 eav Vr D.17 4nV5 FM" mwt$ AwT4 ft V4 40% MTB Aug•Ba DIPTA Details of your new charges Your rate: DOMESTIC Billing period: Aug 15'08 to Sep 16'08 (32 days) Delivery charges Basic charge 32 days x $0.02200 Energy -Summer Tier 1 (within baseline) 63 kWh x $0.06740 ..p.WR ba0d charslg_...... 63.kWh x $0.00477 Generation charges DWR Energy summer 15 kWh x $0,08614 SCE Energy -Summer Tier 1 (within baseline) 48 kWh X $0.03412 Your Delivery charges Include: $0.70 , $0.36 transmission charges $4,13 distribution charges $4,25 . $0,04 nuclear decommissioning charges -_.... _._ ......_..._.. • $0,40 public purpose programs charge $1.29 Your Generation charges Include; a $0.36 competition transition charge $1_64 Your overall energy charges Include: Subtotal of your new charges $8.18 a $0.07 franchise fees state tax 63 kWh x $0,00022 $D.01 Your new charges $a.19 Additional information: • DWR provided 23.833% or the energy you used this month • Service voltage: 240 volts • Your summer baseline allowance: 326.4 kWh 03/14/2006 23:54 19497230159 MECHAM PAGE 04/05 .5�?Q6'4Q77}t41i'r�.�tL{:E12'iidti'3!�'adll.RtSrl..,nl l'd f!,1.:' „•:1 :'!.• , THERN >� j EUD I SuO N® 6:•eV An 90180(v 1AIMNATIONAL0 Company NEWPORT BEACH, CITY OF / Page 5 of 8 'setV1CQ• fbcount, i�3-:009yfS�',Y--091, 7. •• "• � , ' 3$r'Vire�ac�dress•• 5100-U,TIUTI)w5'��:,. •,t. � �styr'"'• 17Y8.W B4ti• NPPRT¢Pfi; CA' Rotatlpg outagb Group: N001, Compare the el6ctricity 06 are:usin Your. current read for mietbr 343-008138 ,Sep 16'08 02825 'Your next meferreed:wtll boon or about Oaf,1T '� ; Your p reviousread-/1u 15'08 -02588 ; ``•.' Difiergnce ,..,... 37. Multi liar x 40.00' Maximum demarxj is A,0 M ' otal'etectricity you used this month in kWh 1,480 Your daily average electricity usage -(kWh) 52 35 17 Sep'05 Sep'07 Aug'08 Sep'08 "NO data available Usage comparison 5ep'OB 56p'07 OIX'07 Nov'07 b6e'07 Jan'08 Feb'08 Mer'BB Apr'OB May'08 Jun'08 Jul'Os Auy'OB Sep'08 TwalkW0 died I'M 1A80 1,570 2,600 2,640 1.750 1,800 1.520 1,380 1.360 11320 1,2B0 1,480 NUMbWotdgYa 30 32 30 32 31 20 32 3o 20 32 30 29 02 AppF pvRa6. kWh 52 46 $0 at 85 60 55 so 46 42 44 44 40 ueedlday Details of your new charges Your rate: 08.1 Billing period: Aug 15'08 to Sep 16'08 ($2 days) Delivery charges Energy summer OWR bond charge Customer charge Generation charges &WR Energy summer SCE Energy summer Subtotal of your new charges Your Delivery charges include: 1,480 kWh x $0.03680 $54,46 . $9.45 transmission charges 1,480 kWh x $0.00477 $7.06 . $51.53 distnbution charges $18.08 . $0.87 nuclear decommissloning charges . $10.33 public purpose programs charge 353 kWh x $0,08614 $30.41 Your Generation charges include: 1,127 kWh x $0.11628 $131.05 * $7 6B competition transition charge 1480 kWh x $0.00022 $241,0e $0.33 Youroverall charges Include: onergyIse 241.39 tees (Continued on next page) POOR: QUALITY ORIGINAL (S) 03/14/2006 23:54 19497230159 MECHAM PAGE 05/05 �i�t��aw,�,`tt'�.�i),�`n�.,fiYi.g.�e�ityY�>P,:3i';'!]=: tti'•:` ... ��P'r', SOUTHERN CALIFORNIA EDISON® An 6DISON INTHRNATIONALO Company ■ ■ September 2008 Business Connection Please visit us at WWW.Sce.com Page 7 of 8 sal• ;i;:i', r;• ' t ,,;,•;!' ft.-You: Preparea . "i j('i` r'--' •;: •'Septe'ri'ib2irhag beerr designatscf as,NaNQhai Fie siednsss Montfi — a time•to get 0r anized. beoause'dl§asterS.cait:atrlke at'tny,rno'Map we, hope you QII use this, 6hedklist to gear up end stay prepared: ' :;;•ttlkti,:'"s'::.;: " visitvlrwuirsce.coim reoare, yesr'rouhq: f`q[;rnor�,l6dainmendetions, p hetREADY 6y Packing,.. �'a plan,.ofAction;;','2V :i�Uiokiy::�t Safely..;, • One gallon of water per person per day for three days A Ready -to -gat foods like areal bars dnd canned products for three days ■ Flrst-ald kit including Sterile supplies for minor Injuries and cuts, prescriptions, eyewear, and dust mask is Sanitation, hygiene, and personal medical items ■ A sleeping bag or blanket for each person ■ A change of ail -season clothing like Jeans and cotton shirt, and shoes ■ Flashlights, batteries, matches, utility knife, can opener, whistle, radio, local map, compass, moblle phone, and camera ■ Decide on a safe escape route . 1.0 During an emergency,,.turn off anti unplug and a gatherin'g'place major•electrical items or sWtch'ofr power ■ Conduct'reguler safety drills and update ' at the breaker panel ' your emergency plan i 0 Adhere to evacuation orders and service ■ Secure Important documents'such as worker instructions IdentR(catlon and health Insurance cards ; ■ Stay on suggested evacuation routes and for easy access • • ( stay close to those you are with ■ Keep handy some cash or your bank cards and secure pass codes ■ Wear a medical badge, identifying any special needs or disabilities m Memorize or keep an updated address book of contact information for household members, schools, businesses, Mends, out-of-town contact persons, and your local emergency authority Is YQur Water Heater Safely StM od In? You and your household members face a serious threat of fire, explosion, or electrocution If your water heater overturns or suffers damage to electrical wiring or plumbing during a disaster, such as an earthquake. For that reason, California law requires that all water heaters must be braced, anchored, or strapped to avoid falling during an emergency situation. To safety secure your water heater and to comply with California's safety requirements, have a licensed professional install an approved restraint Mt to your water heater. Kits are available at your boar hardware or home improvement store. Learn more about water heater safety at wwwA".com/waterheater. u Stay at least 10 feet away from downed power lines and poles ■ Use a radio to stay up to date on local emergency services ■ Co not linger to Investigate, and stay away from evacuated areas until authorities have declared that it is safe to return Safes Portable Generator ,_ , ,- Nook Up Connecting a portable generator to your homes electrical wiring is dangerous and can cause serious injuries or electrocution. Do not hook up a generator directly into an electncal panel. The safe way Is to connect the electrical equipment to a portable generator using a properly sized extension cord, if your needs require a generator to be wired directly to your home, California state law mandates that you notify SCE. We also recommend that you enlist the service of a qualified electrician to perform the'task, For more Information, please cell (800) 611-1911 or visit www.sceMQW9enerator. v GENERAL SERVICES DEPARTMENT aE� PORr WORK REQUEST ( a oq<iFowNS Originating Department: Revenue Division Date: 09/24/2008 Parking signs at the CdM Parking Lot for the 16 dedicated parking spaces as shown on the attached chart. The parking signs should read "2 Hour Concession Parking Only - September 8 May 22" Requests requiring construction work of any kind should be accompanied by accurate drawings or sketches. Completion date: Charge to: 0640-8040 Budget No. For additional information s Evelyn Tseng Phone No. 0153 (Submit in Duplicate) —..�.,/ /! 4 n ep ment Represen we (For ,, use by General Services Department) --- — Work assigned to: t 1y'S ��Q�- / j-/l� Date: 7i q iJP Remarks: Completed costs: Labor: Material: Other: TOTAL: General Services Director /1 :D�te Completed Foreman I R STATE BEACH ••N C"OF is MAR U @"m 03/14/2006 23:54 19497230159 MECHAM PAGE 01/05 O gmo ��S A {r.cT s�Pr� D Payments Detail for Marina Park (3400 The mobile remodlers ($300 for the mobile hunhngton Beach, to repair the bathroom -i129 hs e..n..d4 remodlers huntingtoo beach for assistant 330 Pacific Ocean carpel to clean manager, theca et in 2F) - $150 Pacific Ocean) new taro} I. i Ho v+n:cs fn-rldatt NIKKI'S FLAG SHOPPE(US nylon, 2r.,edcl.a. California nylon city of $ 8500 MILLIE -E==4 -0e R»a $ 150.85 newport beach nylon) S $ 9.07695 TEAM UNDERGROUND $ 2,82200 TEAM UNDERGROUND S (56819 39 preventive work and (Removed & Repiacetl $2257.56 removed and existing replaced light fixture with pagoda light) fixtures with new pagotla light fixtures a total of 15 $ na rave e1e4<it pagoda light installed ) $ 2,724.77 $ 842.00 Bendet0 $464 health Insurance to Millie Mechem 378.00 Retroactivity charges Mar-08 $ 181.24 F&M Bank visa $ 29.97 3 Beauty Banboo Cera $ 26.67 3 Economy storage box $ 3642 Brother LC 413 Pk $ 43.19 Brother LC 412 Pkb $ 18.98 waste 28 OT and 8 Galllon Aug-07 $ 866.37 Paid to Visa new computer form staples Ck 1656 $455 Carpet and Tnm Deck and Steps, $145 Install switch for $ 6,009.11 S 500.00 Millie Martin J Wang Bonuses Painting work at unit 5E [arty Davis exterior siding was caulked around window TEAM UNDERGROUND ( Pagoda light future & measure & build new Service window 6900 ORANGE COUNTY AND PRO J$ 55000 Nowlin Fence(ck 1651) work came back and Installed (1) speed bump as per I Manager home back door I 0> uo here jhe resPon916ih4Y -f. r�Pa hra Qnft ,r (2o:F. 4t+•.cIK..t ProdsimS• L'at Tkt c P.•W*'Wzs arx! 51e r; -14"y xrWi 7}+e: x.Pc -P 'f)nc Pro aims- Rs if Pwv opProral. expenses $ 276.04 408 Cingular 181.15 AT&T 4383 Cingular 10.26 Bendetb $ 1,222.89 Paid to F&M Visa $ F&M Visa was used to pay the Renalsance Np y.rp,io., flq.y 711A6 of H0llymod.,Z.,,, 16A3 CKIt 1726 lfal{lvned $ 495.00 192 $ 24034 43 83 Cingular 43.73 AT&T Mobility 186.35 AT&T (SBC) 10 26 Bendetg 145.00 F&M Bank visa by WMA $ 439.00 F&M Bank visa Westem mamfactured housing wmmunities associations nonhvrind management pr.F+ 1ct+s do $nd<+i3 a rfechon r - AyMc h the K dcea i.} 9A1 ur+ fl7ro+<r»v.}S NC C1y jv9p ;)p;)•y../ G„G 1oN, -10 0> Jy-kJ ecPl w'a9 -rl Pep,-Ppr-wl , l F9oP627y Y ogt4A&rma;NT t. i • 1. AGENT: Bendettl Management Group 2. TYPE OF CONTRACT: Property Management Agreement 3. PURPOSE OF AGREEMENT: (Article II) Management and Operation of Marina Mobile Home Park. 4. CONTRACT EXECUTION DATE: January 22, 1998 S. PREMISES: a. Location: Marinapark b. Square Footage: N/A 6. TERM: (Article III) a. Term: b. Commencement Date: C. Expiration Date: March 31, 2000. Currently on month to month. d. Option Term(s): N/A e. Fiscal Year: January 1 to December 31 7. AGENT'S FEE: a. General: (Section V(7)) Owner shall pay Agent for Its property management services a monthly fee equal to 5% of gross revenues. Agent is authorized to deduct the fee each month, plus any other fees due Agent, as the first charge upon al gross monthly rentals. b. Additional Services Rendered: (Section V(8)) For any services rendered by Agent on City's behalf beyond the scope of this Agreement, Agent shall be paid at an hourly rate of $80/hr. Such additional services shall include, but not be limited to, formal rent control procedures and representation of City before governmental entities. All such additional services shall be approved by the City in writing beforehand. Services rendered for the management and financing of capital improvements costing in excess of $10,000 shall be subject to a separate contract. 2 8. AGENT'S DUTIES: (Article IV) 1. Trust Account: Agent shall establish and maintain with an Institution of Agent's choice, a Trust Account for the deposit of monies collected from the Park. 2. Rent Collection: Agent shall collect rentals, charges or other income when due from tenants of the Park in accordance with the terms of their tenancies and may execute all receipts or any other documents reflecting receipts of said sums. 3. Operations and Management: a. employment, supervision and discharge on -site managers and other personnel necessary to property management, operation and maintenance of the Park; b. customary and ordinary maintenance and repair of the Park; c. procurement and supervision of any services and utilities necessary to�the proper management of the Park, including water, electricity, gas, fuel, telephone, vermin extermination, rubbish hauling, window cleaning, janitorial and gardening and landscaping; d. advising City regarding any Insurance necessary to protect City such as workmen's comp, public liability insurance, fire, casualty and extended coverage insurance, burglary and theft insurance; e. prompt and timely compliance with federal, state and municipal laws and ordinances and rules; f. administration and maintenance of all lease documents and park regulations; g. administration, management and financing of capital improvements to the park which may be approved by owner which have a total cost of $10,000 or less. 4. Operating Expenses: From gross revenues collected, Agent shall: a. Pay all employee salaries at rates authorized by Owner; b. Pay all operating expenses Incurred through renting, servicing, maintaining, or repairing the Park and such additional expenses in connection with the Park as may be authorized by Owner; and c. Deduct Agent's fees. 5. Records: a. Agent shall compile and maintain those records, books and accounts as required by applicable state and federal law pertaining to mobile home parks b. Agent shall maintain full and accurate books and records of the accounts of the Park. Agent shall render to Owner a statement on the 201h of each month showing all receipts and disbursements and reflecting the financial conditions of the park for the month immediately proceeding [sic]. 6. Payments: On the 201h day of each month, Agent shall forward to the Owner the balance remaining after all necessary charges have been made as provided In the Agreement. In the event there is a deficit in the account of the Park, Agent shall notify Owner of this deficiency, and Owner agrees to forward said amount to Agent within 72 hours after notice. 7. Emolovee Coaches: Agent shall control the use and occupancy of the two coaches in the Park owned by the City and reserved for use by Park employees. 9. CITY OBLIGATIONS: (Article V) 1. Information to Agent: Cityagrees to promptly furnish Agentwith all documents and records to properly manage Park. 2. Reimbursement: City agrees to immediately reimburse Agent, upon demand, to the full extent for all monies advanced by Agent for City's accounts in carrying out the purpose of this Agreement. 10. INSURANCE OBLIGATIONS: a. Agent Indemnity: (Section IV(9)) Agent shall defend, •indemnify and hold harmless the City and its offcers, employees and representatives, with respect ,to any claim or loss arising out of or in any way related to agent's willful misconduct, fraud, negligence or failure to perform duties required by this agreement. b. Hold Harmless: (Section V(2)) Except for Agent's misconduct or negligence, City shall indemnify and save the Agent and its officers, directors, shareholders, employees, representatives, successors and assigns, harmless from any and all claims, costs and expenses, attorneys fees, litigation, liabilities, and damages arising from or connected with the park of the performance or exercise of any of the duties, obligations, powers, or authorities herein or hereafter granted to Agent. c. Insurance: (Section V(3)) City is a self insured public agency. City agrees to consider all reasonable recommendations of Agent with respect to Insurance coverage to minimize the cost [d d. Waiver of Subrogation: (Section V(4)) e. Bond: (Section VI(5)) 11. TERMINATION CLAUSE: 12. NOTICES: (Section VI(6)) (Article III) thereof and the possibility of bodily injury, property damage, and loss of rental income. City waives all of its rights and those of its Insurers with respect to recovery against Agent on account of loss or damage to City's real or personal property where such loss is caused by an Insurable peril, including, but not limited to fire or any of the extended coverage hazards and which damage arises out of or In connection with the Park. City shall give notice to all insurance carriers, if any, that the foregoing waiver of subrogation Is contained in this Agreement. Agent shall provide City with a bond or similar agreement of a third party to Indemnify the City for any loss due to theft, embezzlement, default by agent or Its employees, officials or representatives. The bond shall be in the sum of $100,OOOloccurrence. The form and content of the bond shall be approved by the City Attorney and the City Manager. Either party may terminate this Agreement without cause upon 30 days written notice. Any notice required under the terms herein shall be deemed given upon the placing of It In the United States Mail, postage prepaid, return receipt requested, and addressed to the address designated below. Said address may be changed by either party by mailing written notice to the other party at the last designated address of the other party as provided herein. City: City of Newport Beach City Manager 3300 Newport Blvd. Newport Beach, CA 92663 Agent: Bendetti Management Group Robert D. Bendetti, Principal 1176 Main Street, Suite 100 Irvine, CA 92614 0 0 MARINAPARK SUMMARY OF PROPERTY MANAGEMENT AGREEMENT Prepared for: Glen Everroad, Revenue Manager City of Newport Beach By: Evelyn Tseng March 22, 2004