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Maricopa County Superior Court Case CV2012-018443: public docket details, parties, minute entries, documents, and official source links for Southern Village Estates Condominium Association.

Case Number

CV2012-018443

County

Maricopa

Caption

Not captured

Filed

12/19/2012

Case Type

Civil

Judge

Whitten, Christopher

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court
*** Filed ***
01/17/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
01/11/2013
Docket Code 056
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
S. Brown
Deputy
ANDREW KUHN
ERICA J SHOAF
JONATHAN A DESSAULES
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
HEARING SET
Courtroom 701-Central Court Building
1:36 p.m. This is the time set for an Order to Show Cause Hearing on Plaintiff’s
Application for Preliminary Injunction With Notice. Plaintiff is present and represented by
counsel, Jonathan Dessaules and Erica Shoaf. Defendants are represented by counsel, Nikita
Patel.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
The status of the case is discussed. The Court will take a brief recess to allow counsel to
discuss recent developments in the case.
1:39 p.m. Court stands at recess.
1:49 p.m. Court reconvenes with the parties and respective counsel present.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
01/11/2013
Docket Code 056
Form V000A
Page 2
As counsel were not able to resolve all the claims,
IT IS ORDERED setting an Evidentiary Hearing on January 29, 2013 at 9:30 a.m. in
this division. Time allotted: 1 day
Based on counsel’s avowals that the fees have been paid,
IT IS FURTHER ORDERED granting a Preliminary Restraining Order restraining the
Southern Village Estates Condominium Homeowner’s Association from turning the water off
and ordering that the water be turned back on pending the evidentiary hearing.
1:51 p.m. Matter concludes.
DATED: January 16, 2013
/ s / HONORABLE J. RICHARD GAMA
HONORABLE J. RICHARD GAMA
JUDICIAL OFFICER OF THE SUPERIOR COURT
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/07/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
02/04/2013
Docket Code 003
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
K. Carter
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
HEARING RESET
The Court has received the parties’ Stipulated Motion to Continue Evidentiary Hearing,
filed January 24, 2013. Accordingly,
IT IS ORDERED resetting the evidentiary hearing regarding Plaintiff’s Application for
Preliminary Injunction from January 29, 2013, at 9:30 a.m., to March 5, 2013, at 1:30 p.m.
(time allotted: 3 hours), all in accordance with the formal written Order signed by the Court on
January 28, 2013, and filed (entered) by the Clerk on February 4, 2013.
HON. J. RICHARD GAMA
Judge of Superior Court of Arizona
201 W. Jefferson - CCB
7th Floor – Courtroom 701
Phoenix, Arizona 85003
(602) 506-1245
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

02/24/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

02/23/2015

Docket Code 002
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
T. DeRaddo

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

MINUTE ENTRY

Due to a full settlement having been reached at the settlement conference conducted on
February 12, 2015,

IT IS ORDERED vacating the pretrial conference set for March 3, 2015.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/09/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

03/04/2015

Docket Code 375
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
T. DeRaddo

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

DIANA J ELSTON

CASE ON DISMISSAL CALENDAR

The Court has received Defendant Pride Asset Management, Inc.,’s Notice to Withdraw
Proposed Form of Judgment due to a settlement agreement having been reached by the parties.

Accordingly,

IT IS ORDERED setting this matter for dismissal on May 3, 2015. Unless prior to that
date a stipulated judgment or a stipulation for dismissal, along with a proposed form of order, is
submitted to the Court, or the Court otherwise extends the deadline for good cause, all remaining
claims and parties will be dismissed.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/20/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
03/13/2013
Docket Code 004
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
C. Danos
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
HEARING CONTINUED

The Court has considered the parties’ Second Stipulated Motion to Continue Evidentiary
Hearing filed February 28, 2013. Good cause appearing,
IT IS ORDERED vacating the evidentiary hearing that is currently scheduled for
Tuesday, March 5, 2013 at 1:30 p.m., and resetting the same for April 9th, 2013 at 1:30 p.m., all
in accordance with the formal written Order signed by the Court March 4, 2013.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/25/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

03/19/2015

Docket Code 042
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
T. DeRaddo

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

JAY ROSENTHAL

CASE DISMISSED

The Court has received the parties’ Stipulation to Dismiss With Prejudice, filed on March
6, 2015. Accordingly,

IT IS ORDERED dismissing the above-entitled action with prejudice, each party to bear
their own attorney’s fees and costs, in accordance with the formal written Order Granting
Stipulation to Dismiss With Prejudice signed by the Court on March 19, 2015, and filed
(entered) by the Clerk on March 19, 2015.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/12/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
04/10/2013
Docket Code 003
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
C. Danos
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
EVIDENTIARY HEARING CONTINUED
The Court has received and considered the parties’ Stipulated Motion to Continue
Evidentiary Hearing. Good cause appearing,
IT IS ORDERED vacating the Evidentiary Hearing scheduled for April 9, 2013 in this
division and continuing it to July 25, 2013 at 1:30 p.m. (time allotted: 3 hours).
IT IS FURTHER ORDERED that exhibits for use at hearing shall be delivered to the
Clerk of this Division at least ten (10) days before hearing for marking. The exhibits shall have
a cover sheet which clearly states they are to be given to the clerk for marking.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

05/19/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

05/15/2014

Docket Code 376
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco

Deputy

ANDREW KUHN
ERICA J SHOAF

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

CASE CONTINUED ON DISMISSAL CALENDAR

The Court has received and considered Plaintiff’s Motion to Continue on Inactive
Calendar, filed May 14, 2014. Accordingly,

IT IS ORDERED continuing this matter on the Dismissal Calendar for dismissal on
September 11, 2014, without further notice, unless prior to said date a judgment is entered or
filed or a stipulation for dismissal and proposed form of Order are submitted to the Court.

A formal Order in accordance with the above is signed by the Court on May 15, 2014 and
filed (entered) by the clerk on May 15, 2014.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

06/18/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

06/17/2014

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

RULING

The Court received and considered the briefing submitted by these parties on Plaintiff’s
application for attorney fees and costs. The parties have not requested oral argument. In addition,
the Court also finds that the parties’ briefing is comprehensive and sufficient, and that oral
argument would not add to the Court’s consideration of the issues presented. Accordingly, oral
argument is waived pursuant to Ariz. R. Civ. P. Rule 7.1[c][2] to expedite the business of the
Court. The Court issues the following ruling.

General Background. Briefly stated, the Court awarded Plaintiff attorney fees pursuant to
Ariz. R. Civ. P. Rule 37. These fees were awarded as a result of Defendants failing to provide a
knowledgeable Rule 30[b][6] witness for deposition. Plaintiff’s firm had two attorneys bill time
on this discovery motion and herein seeks fees totaling $8,527.50 and costs totaling $12.
Defendants re-argue the Court’s decision to award fees in the first instance and in addition allege
that the fees are excessive, entailed legal services that were duplicative, and should be
substantially reduced.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

06/17/2014

Docket Code 019
Form V000A
Page 2

Discussion. As ruled, the Court finds that Plaintiff is entitled to fees as a sanction
pursuant to Rule 37. Having reviewed Plaintiff’s application for fees, considering the totality of
these circumstances and the factors set forth in Schweiger w. China Doll Restaurant, Inc., 138
Ariz. 183 [App. 1983], the Court finds that the amount of attorneys’ fees requested are
duplicative and excessive. Attorneys’ fees must bear a direct relationship to the nature of the
legal dispute and the quality, kind and extent of services reasonably rendered in such matters.
The amount of time expended on the claim must also be reasonable.

It is clear under the circumstances of this case, that there existed duplication of effort by
the attorneys assigned to this matter and that the matter was overstaffed. The Court will not pass
on or shift these duplicative expenses to this sanctioned party.

In the exercise of its discretion, the Court finding duplication and excessive time
expended by multiple attorneys on this matter, herein reduces the amount of fees requested. The
Court herein awards Plaintiff reasonable fees in the sum of $4,500 and costs of $12.

IT IS ORDERED awarding Plaintiff reasonable attorney fees against Defendants in the
sum of $4,500 and costs in the sum of $12.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/07/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

07/02/2014

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

RULING

The Court received and considered the briefing submitted on Plaintiff Andrew Kuhn’s
[Plaintiff] Motion for Summary Judgment on Issue of Water Shut-Off. Defendants Southern
Village Estates Condominium Association and Pride Asset Management Inc. [collectively
Defendants] have filed a responsive pleading and also seek judgment on these issues as a matter
of law. Plaintiff has requested oral argument on the issues presented. However, the Court finds
the briefing is sufficient, and that oral argument would not add to the Court’s consideration of
the issues presented. Accordingly, oral argument is waived pursuant to Ariz. R. Civ. P. rule
7.1[c][2] to expedite the business of the Court. The Court herein issues the following ruling.

General Background. Plaintiff owns a condominium in a development known as
Southern Village Estates. As an owner of a condo unit in this development, Plaintiff is a member
of the homeowners association. It is undisputed that Plaintiff failed to pay past assessments
imposed by the homeowners association on his owned unit. As a consequence, Defendant
Southern Village Estates Condominium Association [SVECA] sought and secured a judgment
against Plaintiff for all past due and accruing assessments.1 In an effort to collect on this
judgment SVECA retained Defendant Pride Asset Management to commence collection efforts.
These collection efforts were not initially successful.

1 Southern Village Estate v. Kuhn, Kyrene Justice Court Cause No. CC2011-154601.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

07/02/2014

Docket Code 019
Form V000A
Page 2

The homeowner’s association pays a utility for water delivered to each condo unit. These
funds are taken from the monthly assessment dues paid by each unit. As a result of Plaintiff’s
non-payment, Defendants took the affirmative action of either shutting off [Plaintiff’s version] or
significantly restricting [Defendants’ version] the flow of water to Plaintiff’s individual condo
unit. Plaintiff asserts that this action essentially rendered his home uninhabitable.

Plaintiff asserts he did not receive adequate notice of Defendants’ action. As a
consequence he initially removed the shut-off box placed on the water line to his individual unit.
Thereafter, Defendants placed another shut-off box and posted warnings regarding removal of
the shut-off box and notice that the action was taken pursuant to Defendants’ collection policies.
After several months’ time, Plaintiff again removed the water shut-off box affixed to his unit and
this action followed.

In December 2012, Plaintiff paid the outstanding judgment due to Defendants. Since that
time, Plaintiff’s unit has been provided with water.

Plaintiff seeks summary judgment alleging that, as a matter of law, the Defendants did
not have the legal right to shut off water to his unit. Plaintiff asserts that the disconnection of
water, as a collection remedy, is not expressly authorized by Arizona Statute or by this
homeowner association’s governing documents.

Defendants assert that the association’s water restriction policy is valid and enforceable.
Defendants concede that the Declarations [governing documents of the association] did not
expressly authorize this action. Further, Defendants concede that there exists no express statutory
authority authorizing this action. It is Defendants’ position that A.R.S. §33-1242 gives the
association the authority to adopt rules. That pursuant to this statutory authority the association
has adopted a rule allowing it to restrict water to an individual condo unit if a homeowner fails to
pay the monthly HOA assessment.2

Legal Standard. Summary judgment should be granted if the evidence shows there is no
genuine dispute about any material fact and the moving party is entitled to judgment as a matter
of law. Ariz. R. Civ. P. rule 56[a]. The moving party has the burden of showing that material
facts are not genuinely disputed. Celotex Corp. v. Catrett, 477 U. S. 317 [1986]. To meet this
burden, the moving party must point out the lack of evidence supporting the nonmoving party’s
claim, but need not produce evidence negating that claim. Id. at 325. When the moving party has
carried its burden under Rule 56[c], the nonmoving party must show that there are genuine issues

2 Defendant SVECA’s Rules & Regulations, Paragraph 7 provides that the association has “the right to turn off
water to the unit for non-payment of monthly assessment.”

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

07/02/2014

Docket Code 019
Form V000A
Page 3

of material fact. A material fact is one that might affect the outcome of the suit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 [1986]. A factual issue is genuine
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. The nonmoving party must produce evidence to support its claim or defense by more than
simply showing “there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenity Radio Corp., 475 U.S. 574 [1986]. The Court must view this evidence in the
light most favorable to the nonmoving party, must not assess its credibility, and must draw all
justifiable inferences from it in favor of the nonmoving party. Anderson, 477 U.S. at 255. Where
the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue of material fact for trial. Matsushita, 475 U.S. at 586.

On summary judgment, the nonmoving party’s evidence is presumed true, and all
inferences from the evidence are drawn in the light most favorable to the nonmoving party.
Eisenbery v. Ins. Co. of North America, 815 F.2d 1285 [9th Cir. 1987]. But the evidence
presented by the parties must be admissible or able to be produced in admissible form. Ariz. R.
Civ. P. rule 56[c][2]. Conclusory and speculative testimony in affidavits and moving papers is
insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g
Co., Inc. v. GTE Corp., 594 F.2d 730 [9th Cir. 1979].

Discussion. As part of its effort to collect delinquent monthly assessments, this Board of
Directors adopted a rule that allows it to shut water off of units that do not pay their assessments.
The question raised by these parties is whether under these circumstances this practice is lawful.
The answer to this question turns on whether the rule adopted by this association is reasonable;
the test is one of reasonableness.3 If the rule adopted is reasonable it may be adopted. However,
if the rule adopted bears no relationship to the health, happiness and enjoyment of life of the
various unit owners, it is arbitrary or capricious and therefore, unreasonable.

The parties agree that the neither the Declaration nor the By-Laws of this association
expressly provide the right to shut off water to a unit owner as a means of collecting unpaid
assessments. Further, there is no state statute that expressly provides this authority or otherwise
prohibits this practice.

Defendants argue that the rule adopted by its Board of Directors was authorized by
A.R.S. §33-1242 and is reasonable. This is based on the fact that the association pays for the
water delivered to each unit directly from the receipt of monthly assessments.

Plaintiff argues that the rule is unreasonable. First, he argues that the right to shut off
water is not addressed in the Declaration or By-Laws and that any rule adopted under A.R.S.

3 Makeever v. Lyle, 125 Ariz. 384 [App. 1980].

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

07/02/2014

Docket Code 019
Form V000A
Page 4

§33-1242 must be “subject to” and not inconsistent with the Declaration. Plaintiff argues that the
lack of any provision in the Declaration authorizing water shut off is dispositive. Secondly,
Plaintiff alleges that shutting off water to a condo as an extra-legal means of collecting unpaid
assessments is per-se unreasonable and improper. The act of shutting off water renders the unit
uninhabitable. The rule as adopted by the Board of Directors bears no relationship to the health,
happiness and enjoyment of life by unit owners and is therefore unreasonable.

The Court concurs with Defendants that the association has the authority to promulgate
and adopt rules, so long as the rules are themselves reasonable. However, the rule must have
some relationship to the general welfare of the residences of the condominium for it to be valid
and enforceable. Whether under these circumstances the rule at issue was “reasonable” presents
an issue of fact, for the finders of fact. Under these factual circumstances, this Court cannot, as a
matter of law, hold that the imposition of this rule was arbitrary and inconsistent with the
wellbeing of the homeowners, thus either reasonable or unreasonable. Whether the rule bears any
relationship to the health, happiness and enjoyment of life of the various unit owners as a whole,
presents a question of fact. There are genuine issues of material fact that prevent entry of
judgment as a matter of law for either party.

For the reasons stated,

IT IS ORDERED denying Plaintiff’s Motion for Summary Judgment Regarding Water
Shut-Off;

IT IS FURTHER ORDERED denying Defendants’ cross-motion for summary
judgment on this same issue.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/16/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
07/12/2013
Docket Code 003
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
HEARING RESET
The Court has received and considered the parties’ Stipulated Motion to Continue
Evidentiary Hearing, filed July 11, 2013. Accordingly,
IT IS ORDERED vacating the Evidentiary Hearing set for July 25, 2013 and resetting
same to October 28, 2013 at 1:30 p.m. (time allotted: 3 hours) before:
HON. J. RICHARD GAMA
Judge of Superior Court of Arizona
201 W. Jefferson - CCB
7th Floor – Courtroom 701
Phoenix, Arizona 85003
(602) 506-1245
All exhibits, if any, shall be exchanged 15 days before the hearing. Counsel shall confer
regarding exhibits so duplicates are avoided and list any stipulations to those exhibits which can
be received in evidence. At least ten days before the hearing, counsel or their knowledgeable
assistants shall call the division clerk at (602) 506-0984 to discuss procedures for marking
exhibits.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
07/12/2013
Docket Code 003
Form V000A
Page 2
IT IS ORDERED that all motions, responses, replies and other Court requested filings in
this case must be submitted individually. Counsel shall not combine any motion with a
responsive pleading. All motions are to be filed separately and designated as such. No pleadings
will be accepted if filed in combination with another.
NOTE: All Court proceedings are recorded by audio method and not by a court reporter.
Any party may request the presence of a court reporter by contacting the division three (3) court
business days before the scheduled hearing.
A formal Order in accordance with the above is signed by the Court on July 11, 2013 and
filed (entered) by the clerk on July 12, 2013.
Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/31/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
07/29/2013
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
RULING
The Court received and considered Plaintiff Andrew Kuhn’s [Plaintiff], Plaintiff’s
Motion To Strike Answer and Enter Default Judgment as to Defendant Pride Asset Management,
Inc. [Defendant Pride] or, In the Alternative, For Other Rule 37 Sanctions; the responsive
pleading submitted by Defendant Pride and the corresponding reply brief submitted by Plaintiff.
Plaintiff has requested oral argument. The Court finds the briefing sufficient, and that
oral argument would not add to the Court’s consideration of the issues presented. Accordingly,
oral argument is waived pursuant to Ariz. R. Civ. P. rule 7.1[c][2] to expedite the business of the
Court. The Court issues the following ruling.
Plaintiff seeks discovery sanctions alleging that Defendant Pride failed to provide a
knowledgeable Rule 30[b][6] witness for disposition. The principle sanction requested is
dismissal of Defendant Pride’s formal Answer and the right to proceed and secure a default
judgment in this matter. Plaintiff argues that Defendant Pride essentially provided a “warm
body” at the deposition and thereby breached its affirmative obligation to present a witness
vested with corporate knowledge and otherwise prepared to answer questions on the topics
designated in the Notice of Deposition.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
07/29/2013
Docket Code 019
Form V000A
Page 2
Having reviewed the questions asked, this Court finds that the questions were material to
the claims presented by Plaintiff. Further, it appears undisputed that Defendant Pride was
advised of the subject matter of the questions before the deposition and provided with sufficient
time and opportunity to prepare for the deposition.1
This Court concurs with Plaintiff that providing an evasive or incomplete answer to a
discovery request is tantamount to a failure to respond. Having reviewed the responses provided
by Defendant Pride’s Rule 30[b][6] witness, this Court concurs with Plaintiff that the
information provided in response to many of the questions asked amounted to a failure to
respond. Providing a witness who is uninformed is akin to providing no one at all. At best the
responses provided by this witness were incomplete answers and do border on evasiveness.
Plaintiff is entitled to responsive answers which represent the best corporate knowledge on the
topics asked.
By failing to provide a knowledgeable Rule 30[b][6] corporate witness, Defendant Pride
has failed to meaningfully comply with the rules of discovery, caused unnecessary delay in the
discovery process and exacerbated the cost of litigation.
The trial court is vested with board discretion in imposing sanctions for the failure to
make discovery.2 However, under these circumstances, the Court considers the sanctions
requested by Plaintiff as too severe. This Defendant’s behavior does not amount to a
demonstration of flagrant bad faith. The Court would rather consider this severe a sanction only
after a party has failed to comply with an existing discovery order and when the behavior
displayed by the offending party displays a willfulness and bad faith.
The Court thus grants Plaintiff’s request compelling adequate responses to the discovery
sought. In addition, as a sanction the Plaintiff is awarded all costs and expenses, including
reasonable attorney fees, incurred in connection with this motion.
IT IS ORDERED granting in part Plaintiff’s request compelling adequate responses and
for Rule 37 Sanctions. The Rule 30[b][6] deposition shall be rescheduled, at a time convenient to
all parties, and Defendant shall provide a knowledgeable corporate witness and ensure that the
witness provided can testify on matters not only in his/her own personal knowledge but also
respond on all matters with the corporate knowledge reasonably possessed by the entity.

1 In fact, this was essentially the second deposition scheduled for a corporate representative. The initial deposition
was not secured as a Rule 30[b][6] deposition and thus it was rescheduled once this same witness appeared and
advised he was unprepared to provide answers to many of the requested questions.
2 State Farm Ins. Co. v. Roberts, 97 Ariz. 169 [1965].

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
07/29/2013
Docket Code 019
Form V000A
Page 3
IT IS FURTHER ORDERED awarding Plaintiff all costs and expenses associated with
this motion, including reasonable attorney fees. Plaintiff may submit an Affidavit of Fees and
Statement of Costs associated with this motion, in a timely manner. In addition Defendant shall
pay all costs and expenses associated with the ordered deposition.
IT IS FURTHER ORDERED granting leave to Plaintiff to re-urge its request for
sanctions should Defendant Pride fail to provide an adequate Rule 30 [b][6] witness or otherwise
fail to adequately respond to the requested recovery.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/21/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
08/20/2013
Docket Code 016
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
EXTEND TIME FOR FILING GRANTED
The Court having received and considered the parties’ Stipulation to Extend Time for
Plaintiff to File a Reply in Support of His Motion for Summary Judgment on Issue of Water
Shut-Off, filed on August 14, 2013,
IT IS ORDERED approving the Stipulation to Extend and extending the time for filing
the reply up to and including September 18, 2013, all in accordance with the formal written
Order signed by the Court on August 20, 2013, and filed (entered) by the Clerk on

August 20, 2013.
Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/23/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
08/22/2013
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
RULING
The Court having received and considered Defendants’ Motion for Reconsideration of
This Court’s July 29, 2013 Ruling, filed on August 8, 2013,
IT IS ORDERED denying Defendants’ Motion for Reconsideration of This Court’s
July 29, 2013 Ruling.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/16/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

09/08/2014

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
C. Keller

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

DIANA J ELSTON

TELEPHONIC STATUS CONFERENCE SET

The Court has received Defendant Pride Asset Management, Inc.’s Request for Status
Conference, filed August 18, 2014. Accordingly,

IT IS ORDERED setting this matter for a Telephonic Status Conference on
November 13, 2014 at 9:00 a.m. in this division. Time allotted: 15 minutes.

IT IS FURTHER ORDERED that counsel for the Plaintiff is to initiate the telephonic
conference by first arranging the presence of all other counsel or self-represented parties on the
conference call and by calling this division (602-506-1245) promptly at the scheduled time. All
parties appearing telephonically must be joined in a single conference call and be prepared to
hold until called to testify.

The call should be placed from a telephone in an area with no background noise as this
will prevent the parties from hearing the proceedings in the courtroom. The call may not be
placed from a vehicle. Also, the use of cellular telephones to call into the hearing is strongly
discouraged.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

09/08/2014

Docket Code 028
Form V000A
Page 2

IT IS ORDERED that all motions, responses, replies and other Court requested filings in
this case must be submitted individually. Counsel shall not combine any motion with a
responsive pleading. All motions are to be filed separately and designated as such. No pleadings
will be accepted if filed in combination with another.

NOTE: All Court proceedings are recorded by audio method and not by a court reporter.
Any party may request the presence of a court reporter by contacting the division three (3) court
business days before the scheduled hearing.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/20/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
09/19/2013
Docket Code 016
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
EXTENDED TIME FOR FILING GRANTED
The Court having received the parties’ Stipulation to Extend Time for Plaintiff to File a
Reply in Support of His Motion for Summary Judgment on Issue of Water Shut Off, filed on
September 17, 2013,
IT IS ORDERED approving the Stipulation to Extend Time and extending the time for
filing the reply up to and including September 20, 2013, all in accordance with the formal written
Order signed by the Court on September 19, 2013, and filed (entered) by the Clerk on
September 19, 2013.
Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/30/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

09/23/2014

Docket Code 376
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
M. Nielsen

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

CASE CONTINUED ON DISMISSAL CALENDAR

The Court has received and considered Plaintiff’s Motion to Continue on Inactive
Calendar, filed on September 11, 2014. Accordingly,

IT IS ORDERED granting the Motion and continuing the deadline for dismissal to
January 9, 2015, without further notice. Unless a form of final judgment or a stipulation for
dismissal, along with a proposed form of order, is submitted before that date, or the Court
otherwise extends the deadline for good cause shown, this matter will be dismissed.

A formal Order in accordance with the above is signed by the Court on September 16,
2014 and filed (entered) by the clerk on September 23, 2014.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/17/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
10/15/2013
Docket Code 002
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
HEARING VACATED
The Court has received and considered the parties’ Stipulation to Vacate Evidentiary
Hearing, filed on October 14, 2013. Accordingly,
IT IS ORDERED approving the parties’ Stipulation and vacating the Evidentiary
Hearing set for October 28, 2013 at 1:30 p.m. in this division, all in accordance with the formal
written Order signed by the Court on October 15, 2013 and filed (entered) by the Clerk on
October 15, 2013.
Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/18/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

11/13/2014

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
T. DeRaddo

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

DIANA J ELSTON
ALTERNATIVE DISPUTE
RESOLUTION - CCC

MINUTE ENTRY

Central Court Building – Courtroom 701

9:11 a.m. This is the time set for a Telephonic Pre-trial Scheduling/status conference.
Appearing on behalf of the Plaintiff, Andrew Kuhn, is counsel, Jonathan A. Dessaules.
Appearing on behalf of Defendant, Southern Village Estates Condominium Association, is
counsel, Nikita V. Patel. Appearing on behalf of Defendant, Pride Asset Management, Inc., is
counsel, Dianna Elston.

A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.

Discussion is held regarding the status of the case, discovery issues, and pending
motions.

The Court acknowledges that Plaintiff’s Notice of Lodging Proposed Form of
Judgment, filed June 30, 2014, is pending.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

11/13/2014

Docket Code 028
Form V000A
Page 2

LET THE RECORD REFLECT that the Court will wait until the conclusion of the case
to rule on and/or sign the attached order.

The Court was informed that Defendant Pride Asset Management, Inc’s Motion for
Summary Judgment filed June 24, 2014, is outstanding as to a ruling.

LET THE RECORD REFLECT that the Court will rule on this matter after review of the
pleadings.

Further discussion was held regarding possible settlement negotiations. At request of
counsel and good cause appearing,

IT IS ORDERED the parties shall participate in a mandatory settlement conference.
This case is referred to the Court’s Alternative Dispute Resolution for the appointment of a judge
pro tempore to conduct a settlement conference. Counsel and/or the parties will receive a minute
entry from ADR appointing the judge pro tempore. Counsel and any “pro per” parties will
contact the appointed judge pro tempore to arrange the date, time, and location for the settlement
conference. The judge pro tempore is requested to conduct a settlement conference not later than
February 28, 2015. The Office of Alternative Dispute Resolution will not do the scheduling
of the settlement conference so please do not contact that office. If counsel prefer to use a
private mediator to conduct the settlement conference, a Stipulation and Order re: Alternative to
ADR must be presented to the Court by no later than 5:00 p.m. on December 30, 2014. All
counsel and their clients, or non-lawyer representatives who have full and complete authority to
settle the case, shall personally appear and participate in good faith in the Settlement Conference.
Sanctions may be imposed for failure to participate.

Please note: If one or both parties fail to appear at the scheduled Settlement Conference,
the party failing to appear may be assessed a No Show Fee of $100.00.

IT IS FURTHER ORDERED setting a Joint Telephonic Status Conference on March 3,
2015 at 9:00 a.m.

9:20 a.m. Matter concludes.

LATER:

On the Court’s own Motion,

IT IS ORDERED continuing this matter on the dismissal calendar through June 30,
2015.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
11/20/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
11/19/2013
Docket Code 084
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
J. Polanco
Deputy
ANDREW KUHN
ERICA J SHOAF
v.
SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL
CASE CONTINUED ON INACTIVE CALENDAR
The Court has received and considered Plaintiff’s Motion to Continue on Inactive
Calendar, filed on November 13, 2013. Accordingly,
IT IS ORDERED continuing this matter on the Inactive Calendar for dismissal on
May 14, 2014, without further notice, unless prior to said date a judgment is entered or filed or a
stipulation for dismissal and proposed form of Order are submitted to the Court.
A formal Order in accordance with the above is signed by the Court on November 18,
2013 and filed (entered) by the clerk on November 19, 2013.
Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-018443
11/19/2013
Docket Code 084
Form V000A
Page 2
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/26/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

11/25/2014

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
T. DeRaddo

Deputy

ANDREW KUHN
JONATHAN A DESSAULES

v.

SOUTHERN VILLAGE ESTATES
CONDOMINIUM ASSOCIATION, et al.
NIKITA VERMA PATEL

RULING

The Court has received and considered the briefing submitted on Defendant Pride Asset
Management, Inc.’s (Defendant Pride) Motion For Summary Judgment. Plaintiff previously
requested oral argument. However, Court finds the briefing is sufficient, and that oral argument
would not add to the Court’s consideration of the issues presented. Accordingly, oral argument is
waived pursuant to Ariz. R. Civ. P. rule 7.1[c][2] to expedite the business of the Court. The
Court herein issues the following ruling.

General Background. Defendant Pride is a property management company retained by
Defendant Southern Village Estates Condominium Association to manage the development and
maintain and collect maintenance assessments and related charges from members. Plaintiff owns
a condominium unit in Southern Village Estates Condominium. Briefly stated, Plaintiff alleges
that Defendant Pride shut off the water to his unit as a means of collecting a previously secured
judgment.1 Plaintiff contends that these collection tactics violated the Fair Debt Collection
Practices Act [FDCPA]. This act prohibits oppressive, harassing and abusive debt collection
practices. Plaintiff takes the position that FDCPA applies and further, that Defendant Pride is a
“debt collector” under this act. As a consequence, Plaintiff has brought this claim against
Defendant Pride seeking damages under the act.

1 This judgment was secured against Plaintiff for failing to pay monthly HOA assessments.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

11/25/2014

Docket Code 019
Form V000A
Page 2

Defendant Pride alleges that, as a management company, it is tasked with performing
many services that are not related to the collection of monthly assessments. It seeks dismissal of
this action as a matter of law alleging that it was not a “debt collector” for purposes of FDCPA.
Specifically, it alleges that it falls within a statutory exception to the definition of “debt
collector.” This Court concurs that Defendant Pride is not a “debt collector” under FDCPA and
therefore that the act is not applicable to these circumstances.

Legal Standard. Summary judgment should be granted if the evidence shows there is no
genuine dispute about any material fact and the moving party is entitled to judgment as a matter
of law. Ariz. R. Civ. P. rule 56[a]. The moving party has the burden of showing that material
facts are not genuinely disputed. Celotex Corp. v. Catrett, 477 U. S. 317 (1986). To meet this
burden, the moving party must point out the lack of evidence supporting the nonmoving party’s
claim, but need not produce evidence negating that claim. Id. at 325. When the moving party has
carried its burden under Rule 56[c], the nonmoving party must show that there are genuine issues
of material fact. A material fact is one that might affect the outcome of the suit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A factual issue is genuine
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. The nonmoving party must produce evidence to support its claim or defense by more than
simply showing “there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenity Radio Corp., 475 U.S. 574 (1986). The Court must view this evidence in the
light most favorable to the nonmoving party, must not assess its credibility, and must draw all
justifiable inferences from it in favor of the nonmoving party. Anderson, 477 U.S. at 255. Where
the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue of material fact for trial. Matsushita, 475 U.S. at 586.

On summary judgment, the nonmoving party’s evidence is presumed true, and all
inferences from the evidence are drawn in the light most favorable to the nonmoving party.
Eisenbery v. Ins. Co. of North America, 815 F.2d 1285 (9th Cir. 1987). But the evidence
presented by the parties must be admissible or able to be produced in admissible form. Ariz. R.
Civ. P. rule 56[c][2]. Conclusory and speculative testimony in affidavits and moving papers is
insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g
Co., Inc. v. GTE Corp., 594 F.2d 730 (9th Cir. 1979).

Discussion. The principle issue presented on this motion is whether the FDCPA applies
to Defendant Pride. This Court agrees with Defendant Pride that it falls within the exception to
the definition of a debt collector created by Section 1692 [a][6][f][iii]. As a result, the Court will
not address the additional arguments made by the parties in this matter.

15 U.S.C. § 1692[A][6][F][iii] excepts from the definition of “debt collectors” those who
had responsibility for collecting the debt prior to the time it went into default. The act itself

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-018443

11/25/2014

Docket Code 019
Form V000A
Page 3

provides, that the term “debt collector” does not include: “[F] any person collecting or
attempting to collect any debt owed or due or asserted to be owed or due another to the extent
such activity… [iii] concerns a debt which was not in default at the time it was obtained by such
person.”

In this case, it is undisputed that Defendant Pride was responsible for collecting
assessments on a monthly basis and further that it obtained the right to collect assessments
several years before Plaintiff’s assessments became overdue. Under these circumstances
Defendant Pride became the HOA’s managing agent July 1, 2008. Plaintiff did not become
delinquent on payment of his monthly assessments until 2010 and thereafter the allegations
related to collection activities occurred in 2012. As Defendant Pride was responsible for
collecting the HOA’s monthly assessments before they became past due, it is exempted for
application of the FDCPA. Alexander v. Omega Management, Inc. 67 F.Supp.2d 1052;
Franceschi v. Mautner-Glick Corp., 22 F.Supp.2d 250.

For the reasons stated, and those set forth in Defendant Pride pleadings,

IT IS ORDERED granting Defendant Pride’s Motion For Summary Judgment;

IT IS FURTHER ORDERED dismissing Plaintiff’s FDCPA claim against Defendant
Pride.

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