Board Governance & Defamation | A.R.S. §§ 12-341.01, 12-349 | CV2024-031553
In this Maricopa County Superior Court case, the owner of a commercial condominium in the Safari Drive Condominium complex claimed the association defamed his real estate brokerage in a newsletter and that board members breached their own Code of Conduct. The court held the plaintiffs lacked standing because the alleged harm ran to the non-party brokerage, that the newsletter’s sales list was true and therefore not defamatory, that calling a lawsuit “frivolous and meritless” is non-actionable opinion, and that a board members’ code of conduct is not a contract an individual association member can sue on. It later refused to award the winning defendants attorneys’ fees under A.R.S. §§ 12-341.01 and 12-349.
Last updated July 1, 2026. Case: Oleg Bortman v. First Service Residential Arizona, LLC, et al., Maricopa County Superior Court No. CV2024-031553.
Scope note: This page covers Oleg Bortman v. First Service Residential Arizona, LLC, et al. (Maricopa County Superior Court No. CV2024-031553) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the March 25, 2025 under-advisement ruling dismissing the case and the June 16, 2025 under-advisement ruling denying attorneys’ fees; the complete set of collected minute entries is available in the source-document index below. Currency caveat: as of the last collected minute entry (June 16, 2025), the complaint had been dismissed without prejudice, the court had ordered the defendants to submit a proposed form of judgment, and the fee application had been denied — the docket may have developed further, and dismissed claims could in theory be refiled. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.
The takeaway
The superior court dismissed the First Amended Complaint without prejudice on every count. The defamation and interference claims failed because the alleged harm ran to The Brokery — a real estate brokerage that was not a party — so plaintiffs Bortman and JIMBO, LLC lacked standing; because the association newsletter’s list of recent sales was true, even if not complete, and true facts cannot be defamatory; and because a board statement that the lawsuit was “frivolous and meritless” is a statement of opinion, not fact. The breach-of-contract and implied-covenant claims failed because the Board Members Code of Conduct is not a contract an individual association member can enforce. Injunctive relief against future disparagement was unavailable, and the individual directors, the management company, and its general manager were not appropriate parties absent specific individual acts. The court later denied the defendants’ application for attorneys’ fees in full: the case sounded primarily in tort, so A.R.S. § 12-341.01 did not support a fee award, and § 12-349 sanctions were inappropriate because the claims were arguable until fully developed on the motion to dismiss.
Case Participants
Petitioner Side
- Oleg Bortman (Plaintiff)
Managing member of JIMBO, LLC and designated representative for JIMBO; operates a real estate brokerage business called The Brokery out of the commercial condominium JIMBO owns in the Safari Drive Condominium complex. - JIMBO, LLC (Plaintiff)
Owner of a first-floor business condominium in the Safari Drive Condominium complex; named as a plaintiff alongside Bortman in the First Amended Complaint. - Kim Robert Maerowitz (Counsel)
Counsel for Plaintiff Oleg Bortman, appearing at the March 21, 2025 and June 13, 2025 oral arguments.
Respondent Side
- Safari Drive Condominium Association (Defendant)
Non-profit corporation run by a board that governs the mixed residential and commercial Safari Drive Condominium complex; published the September 27 Newsletter at the center of the defamation claims. - First Service Residential Arizona, LLC (Defendant)
Property manager for the Safari Drive Condominium complex; the court found it was an agent of the Board and the Association and not an appropriate party absent specific acts outside board authority. - Suzanne Hawk (Defendant)
General manager for the property-management company; dismissed as an inappropriate party for the same agency reasons as the management company. - Brenda Vogel (Defendant)
Member of the Safari Drive Condominium Association Board of Directors; the ruling found no individual allegations against any director. - Dirk Claussen (Defendant)
Member of the Safari Drive Condominium Association Board of Directors. - Fritz Beesmeyer (Defendant)
Member of the Safari Drive Condominium Association Board of Directors. - Michael Brady (Defendant)
Member of the Safari Drive Condominium Association Board of Directors. - Charlie Ray (Defendant)
Member of the Safari Drive Condominium Association Board of Directors. - Erin E. McManis (Counsel)
Counsel of record for all defendants — the association, the management company, the general manager, and the five board members. - Josh M. Bolen (Counsel)
Co-counsel for the defendants, appearing at the March 21, 2025 and June 13, 2025 oral arguments.
Neutral Parties
- Michael J. Herrod (Judge)
Maricopa County Superior Court judge who heard the motion to dismiss and fee application and issued the March 25, 2025 and June 16, 2025 under-advisement rulings.
What happened
Safari Drive is a condominium complex containing both residential and commercial units, governed by the Safari Drive Condominium Association, a non-profit corporation run by a board of directors. First Service Residential Arizona, LLC is the complex’s property manager, and Suzanne Hawk is the management company’s general manager. JIMBO, LLC owns a first-floor business condominium in the complex; Oleg Bortman is JIMBO’s managing member and operates a real estate brokerage called The Brokery out of that unit — set up, in part, with the expectation that The Brokery would be in a uniquely favorable position to market units in the complex.
Bortman and JIMBO sued the Association, the management company, Hawk, and five board members (Brenda Vogel, Dirk Claussen, Fritz Beesmeyer, Michael Brady, and Charlie Ray) in Maricopa County Superior Court. Their First Amended Complaint pleaded five counts: defamation (libel and slander), interference with prospective economic advantage, breach of contract, breach of the implied covenant of good faith and fair dealing, and injunctive relief. The defamation and interference counts centered on the Association’s “September 27 Newsletter,” which contained a simple list of recent sales in the complex; plaintiffs alleged the sales were cherry-picked so that the only sale listed for The Brokery was an under-market sale. The interference count also pointed to allegations that units were listed with another broker, that The Brokery was refused electronic promotional monitors near windows and an open-air event in the common area, and that at a November 12, 2024 open session the Board announced Bortman had filed a “frivolous and meritless” lawsuit. The contract counts rested on the Board Members Code of Conduct, which plaintiffs alleged each director signs on joining the board.
The defendants moved to dismiss on January 13, 2025. After full briefing, the court heard oral argument on March 21, 2025 — simultaneously with two Rule 26(D) discovery disputes — and took the motion under advisement, ordering that the clock for responding to the plaintiffs’ discovery would start on the ruling date if the motion were granted, and that the plaintiffs could not serve the defendants by email absent an agreement.
On March 25, 2025, Judge Michael Herrod issued an under-advisement ruling dismissing the complaint without prejudice. On the defamation and interference counts, the court found that even if the allegations were true they applied to The Brokery — a business whose relationship to the plaintiffs the complaint never explained — so Bortman and JIMBO lacked standing to sue on its behalf; that the newsletter’s facts “were true, even if not complete,” and therefore could not be defamatory; and that the statement that the lawsuit was frivolous and meritless was a non-actionable statement of opinion under Takieh v. O’Meara, because it does not imply a false assertion of fact. The Code of Conduct claims failed because association members are not overtly named as third-party beneficiaries, so the Code is not a contract an individual member can sue on. Injunctive relief was denied because “[t]he Court cannot order the Board or the Association ‘not to say that'” — defamation law deters conduct through damages. Finally, the court held the individual directors could not be individually liable where no specific acts by specific directors were identified, and that the management company and Hawk, as agents of the Board and Association, were not appropriate parties. The court ordered the defendants to submit a proposed form of judgment and a fee application.
The fee fight then played out over the spring. The defendants applied for attorneys’ fees and costs on April 8, 2025, invoking A.R.S. § 12-341.01 (actions arising out of contract) and § 12-349 (claims without substantial justification, harassment, delay, or discovery abuse). In an April 30 minute entry the court signaled it would deny § 12-341.01 fees because, although the case was pleaded partly in contract, the matter did not arise out of contract, and it set oral argument on the § 12-349 request. After the June 13, 2025 argument, the court’s June 16, 2025 under-advisement ruling denied the application entirely. Analyzing Mullins, Colberg, and Sparks v. Republic National Life Insurance Co., the court explained that a defendant who defeats a contract claim can still recover § 12-341.01 fees, but here the tort of defamation “has nothing to do with the Board Members Code of Conduct” — the tort and contract theories were not intertwined, and the case “sounded primarily in tort.” As for § 12-349 sanctions, even accepting the defendants’ account, sanctions were not appropriate because “the claims were arguable until the parties fully developed the claims in the proceedings on the motion to dismiss.”
Procedural timeline
Complete uploaded source-document index
This index is generated from every public-facing source file currently present in assets/court_case_downloads/oleg-bortman-v-first-service-residential-arizona/raw/: 7 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.
Oral Argument Set
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
Oral Argument Set
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
Minute Entry
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
Under Advisement Ruling
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
Oral Argument Set
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
Minute Entry
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
Under Advisement Ruling
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
FAQ
Why did the defamation claims fail?
For three independent reasons. First, standing: the party allegedly damaged by the newsletter was The Brokery, a real estate brokerage that was not a plaintiff, and the complaint never explained its relationship to Bortman or JIMBO, LLC — so the plaintiffs could not sue on its behalf. Second, truth: the court found the facts in the September 27 Newsletter — a simple list of recent sales with no commentary — “were true, even if not complete,” and true facts cannot be defamatory. Third, opinion: the board’s statement that the lawsuit was frivolous and meritless is a subjective belief, not an objectively verifiable fact, and under Takieh v. O’Meara an opinion is only actionable if it implies a false assertion of fact.
Can an association member sue the board for breaching a board members’ code of conduct?
Not on the facts of this case. The Board Members Code of Conduct set out principles and guidelines for directors and was allegedly signed by each director on joining the board. But although some parts address behavior toward association members, members are not overtly named as third-party beneficiaries. The court held the Code of Conduct “is not a contract based upon which an individual member of the association can bring a breach of contract action or allege a breach of the implied covenant of good faith and fair dealing.”
Why were the individual board members, the management company, and its general manager dismissed?
The First Amended Complaint made no individual allegations against any of them. The court explained that directors of a non-profit corporation acting as a group are taking the actions of the association — there is no individual liability unless specific actions of specific directors are identified. Likewise, the management company and its general manager are agents of the Board and the Association and cannot be liable for board or association actions unless they committed specific acts outside board authority that damaged the plaintiffs. No such acts were alleged.
The defendants won — why didn’t they get their attorneys’ fees?
The court denied fees under both statutes invoked. Under A.R.S. § 12-341.01, which covers actions arising out of contract, the court acknowledged that a defendant who defeats a contract claim can still recover fees, but found this case “sounded primarily in tort”: the defamation claims had nothing to do with the Board Members Code of Conduct, so the tort and contract theories were not intertwined. Under A.R.S. § 12-349, which mandates fees for claims brought without substantial justification or for harassment, delay, or discovery abuse, the court found sanctions inappropriate because the claims were arguable until the parties fully developed them in the motion-to-dismiss proceedings.
What does “dismissed without prejudice” mean here?
A dismissal without prejudice ends the case as pleaded but does not bar the claims from being refiled in a corrected form. In this case the court dismissed the complaint without prejudice on March 25, 2025 and ordered the defendants to submit a proposed form of judgment. As of the last collected minute entry (June 16, 2025), the fee application had been denied; whether the plaintiffs refiled or the docket developed further is beyond the collected record.
Is this decision binding on other Arizona HOA disputes?
No. Superior-court rulings bind only the parties to the case and are not precedent. The case is still useful reading: it shows the standing problem that arises when the injured business is not the named plaintiff, why true statements and opinions in an association newsletter are not defamatory, why a board code of conduct is a weak vehicle for member claims, and that even a winning HOA defense team is not guaranteed attorneys’ fees when the case sounds primarily in tort.
Case Dossier
This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.
Case Summary
| Case ID / citation | CV2024-031553 (Maricopa County Superior Court) |
|---|---|
| Court / tribunal | Superior Court |
| Decision / key date | March 25, 2025 |
| Judge / panel | Hon. Michael J. Herrod |
| Parties | Oleg Bortman and JIMBO, LLC (Plaintiffs — JIMBO owns a commercial condominium in the Safari Drive complex; Bortman is JIMBO’s managing member) v. First Service Residential Arizona, LLC (property manager); Safari Drive Condominium Association; Suzanne Hawk (general manager); and board members Brenda Vogel, Dirk Claussen, Fritz Beesmeyer, Michael Brady, and Charlie Ray (Defendants) |
| Governing law | |
| Topics | board-governanceattorneys-feesprocedure |
| Outcome / holding | The superior court dismissed the First Amended Complaint without prejudice: Bortman and JIMBO, LLC lacked standing to sue for harm to the non-party brokerage The Brokery; the association newsletter’s sales list was true, even if incomplete, and therefore not defamatory; a board statement that the lawsuit was frivolous and meritless was non-actionable opinion; the Board Members Code of Conduct is not a contract an individual association member can enforce; injunctive relief against disparagement was unavailable; and the individual directors, the management company, and its general manager were not appropriate parties. The court subsequently denied the prevailing defendants’ attorneys’-fees application under both A.R.S. § 12-341.01 (the case sounded primarily in tort) and A.R.S. § 12-349 (the claims were arguable). |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Uploaded source package | 7 PDFs |
|---|---|
| Step-by-step docket roadmap | 10 roadmap entries |
| Video overview | No video embed currently configured |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Curated download aliases | 1 download link |
Key Issues & Findings
The managing member of an LLC that owns a commercial condominium in the Safari Drive Condominium complex — out of which he operates a real estate brokerage called The Brokery — sued the condominium association, its property manager First Service Residential Arizona, LLC, the general manager, and five board members. The First Amended Complaint pleaded defamation, interference with prospective economic advantage, breach of contract, breach of the implied covenant of good faith and fair dealing, and injunctive relief, centered on an association newsletter’s allegedly cherry-picked list of recent sales and a board statement at a November 12, 2024 open session that the lawsuit was frivolous and meritless. In a March 25, 2025 under-advisement ruling the court dismissed the complaint without prejudice on all counts: the plaintiffs lacked standing because the alleged harm ran to the non-party Brokery, the newsletter was true and the frivolous-lawsuit remark was non-actionable opinion, the Board Members Code of Conduct is not a member-enforceable contract, injunctive relief was unavailable, and the individual directors, management company, and general manager were not appropriate parties. In a June 16, 2025 ruling the court denied the defendants’ application for attorneys’ fees under A.R.S. §§ 12-341.01 and 12-349 in full.
On the tort counts, the March 25, 2025 under-advisement ruling started with standing: the plaintiffs were Bortman and JIMBO, LLC, but the party allegedly damaged by the September 27 Newsletter was The Brokery, a business whose structure and ownership the complaint never explained. Even taking the allegations as true, they applied to The Brokery, not to the plaintiffs, so both defamation and interference counts failed at the threshold. The court then found the newsletter’s facts — a simple list of recent sales with no comments — “were true, even if not complete,” and true facts cannot be defamatory. Quoting Takieh v. O’Meara, the court held that the board’s announcement that Bortman had filed a frivolous and meritless lawsuit was a subjective statement of opinion that does not imply a false assertion of fact and is therefore not actionable.
On the contract counts, the court examined the Board Members Code of Conduct attached to the First Amended Complaint — principles and guidelines allegedly signed by each director on joining the board. Although some provisions address behavior toward association members, members are not overtly named as third-party beneficiaries, so the Code is not a contract on which an individual member can sue for breach or for breach of the implied covenant of good faith and fair dealing. Injunctive relief failed because the court cannot order a board or association “not to say that”; defamation law deters conduct through damages. As to the defendants beyond the association, the court held that directors of a non-profit corporation acting as a group are taking the association’s actions — no individual liability attaches unless specific acts of specific directors are identified — and that the management company and its general manager, as agents of the Board and Association, are not appropriate parties absent specific acts outside board authority. None were alleged.
The June 16, 2025 fee ruling is a careful application of Arizona’s fee-shifting law. Surveying Mullins v. Southern Pacific Transportation Co., Colberg v. Rellinger, and Sparks v. Republic National Life Insurance Co., the court acknowledged that a defendant who defeats a contract claim may still recover fees under A.R.S. § 12-341.01, and that intertwined tort and contract theories can support an award when the tort could not exist but for the breach of contract. Here, though, the defamation tort “has nothing to do with the Board Members Code of Conduct” — either theory could have stood independently — so the case sounded primarily in tort and § 12-341.01 fees were denied. The § 12-349 request, premised on discovery propounded while the motion to dismiss was pending and on pre-suit warnings that the claims were not cognizable, also failed: sanctions were inappropriate because the claims were arguable until the parties fully developed them in the motion-to-dismiss proceedings.
This case maps the practical limits of suing an HOA or condominium association over reputational grievances. A member who feels an association newsletter slighted their business must clear three hurdles the plaintiffs here could not: the injured party must actually be the plaintiff (harm to a separate business entity is not the owner’s harm), true information is not defamatory even when selectively presented, and board rhetoric like calling a lawsuit “frivolous” is protected opinion. The ruling also confirms two structural protections common in Arizona association litigation: board members acting collectively are not individually liable without specific individual allegations, and management companies and their staff are agents who cannot be sued for the board’s decisions.
The case is equally instructive on governance documents: a Board Members Code of Conduct — even one every director signs — is not a contract that members can enforce in court unless it names them as beneficiaries. And the fee rulings cut the other way, in the members’ favor: an association-side defense team that wins a dismissal is not automatically entitled to attorneys’ fees. Where the claims sound primarily in tort rather than contract, A.R.S. § 12-341.01 does not apply, and A.R.S. § 12-349 sanctions require more than losing — the claims must have been unarguable. As a superior-court decision it binds only the parties, and the dismissal without prejudice left room for the claims to be refiled.