04/22/2022 — CV2022004188 COSTAIN, DIANA 04/22/2022 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
04/29/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
04/22/2022
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf
Deputy
VILLA SENDERO HOMEOWNERS
ASSOCIATION INC
CHANDLER W TRAVIS
v.
DIANA COSTAIN
MARK BAINBRIDGE
JUDGE MIKITISH
MINUTE ENTRY
East Court Building – Courtroom 913
10:36 a.m. This is the time set for a virtual Return Hearing. Plaintiff, Villa Sendero
Homeowners Association, Inc., is represented by counsel of record, Chandler W. Travis.
Defendant, Diana Costain, is present and represented by counsel of record, Mark Bainbridge. All
parties appear virtually via Court Connect.
A record of the proceedings is made digitally in lieu of a court reporter.
Discussion is held.
10:39 a.m. Court stands at recess.
10:40 a.m. Court reconvenes with respective parties and counsel present.
A record of the proceedings is made digitally in lieu of a court reporter.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
04/22/2022
Docket Code 094
Form V000A
Page 2
Pursuant to the parties’ stipulation and for reasons stated on the record,
IT IS ORDERED that the Defendant shall file a Motion to Dismiss no later than May 20,
2022. The Plaintiff’s response thereto shall be filed by June 3, 2022. The reply no later than June
10, 2022.
IT IS FURTHER ORDERED setting a virtual Oral Argument regarding Defendant’s
anticipated Motion to Dismiss on June 17, 2022 at 2:45 p.m. (time allotted: 30 minutes) in this
division.
The hearing(s) will be held by phone/video conference via the Court Connect platform.
Please join my meeting from your computer, tablet or smartphone.
www.tinyurl.com/jbazmc-cvj12
You can also dial in using your phone (audio only)
+1 (917) 781-4590
Phone Conference ID: 508 176 593#
More information regarding Court Connect can be found at:
https://superiorcourt.maricopa.gov/court-connect/
NOTE: If a message is received stating that the courtroom is locked, stay on the line. The
previous hearing has not concluded. Once the prior hearing has concluded, admission shall be
granted into the virtual courtroom.
NOTE: All court proceedings are recorded digitally and not by a court reporter. Pursuant
to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a court reporter
is not mandated by Arizona Supreme Court Rule 30, the party must submit a written request to the
assigned judicial officer at least ten (10) judicial days in advance of the hearing, and must pay the
authorized fee to the Clerk of the Court at least two (2) judicial days before the proceeding. The
fee is $140 for a half-day and $280 for a full day.
If the parties are not familiar with the courtroom’s technology, they are encouraged to set
up an appointment with the court’s technology liaison at (602) 506-3269.
IT IS FURTHER ORDERED holding Plaintiff’s Application for Preliminary Injunction,
filed on April 4, 2022, in abeyance until Oral Argument set on June 17, 2022 has been heard.
10:50 a.m. Matter concludes.
06/17/2022 — CV2022004188 COSTAIN, DIANA 06/17/2022 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
06/27/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
06/17/2022
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf
Deputy
VILLA SENDERO HOMEOWNERS
ASSOCIATION INC
CHANDLER W TRAVIS
v.
DIANA COSTAIN
MARK BAINBRIDGE
MELISSA S DOOLAN
TAMI SEEKINS
JUDGE MIKITISH
MINUTE ENTRY
East Court Building – Courtroom 913
2:51 p.m. This is the time set for a virtual Oral Argument regarding Defendant’s Motion to
Dismiss, filed May 19, 2022. Plaintiff Villa Sendero Homeowners Association, Inc. is represented
by counsel of record, Chandler W. Travis, appearing virtually via Court Connect. Defendant Diana
Costain is present and represented by counsel of record, Mark Bainbridge, appearing virtually via
Court Connect. The following residents of Villa Sendero Homeowners Association, Inc. are
present: Ann Deschner appearing virtually via Court Connect, Diana Thomas appearing virtually
via Court Connect, Heather Wilcox appearing virtually via Court Connect, Ronald Elmore
appearing virtually via Court Connect, Ryan Taylor appearing virtually via Court Connect, and
Steve Starrick appearing telephonically.
A record of the proceeding is made digitally in lieu of a court reporter.
Argument is presented regarding Defendant’s Motion to Dismiss, filed May 19, 2022.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
06/17/2022
Docket Code 020
Form V000A
Page 2
IT IS ORDERED taking Defendant’s Motion to Dismiss, filed May 19, 2022, under
advisement.
3:24 p.m. Matter concludes.
08/09/2022 — CV2022004188 COSTAIN, DIANA 08/09/2022 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
08/11/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
08/09/2022
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf
Deputy
VILLA SENDERO HOMEOWNERS
ASSOCIATION INC
CHANDLER W TRAVIS
v.
DIANA COSTAIN
MARK BAINBRIDGE
MELISSA S DOOLAN
TAMI SEEKINS
JUDGE MIKITISH
UNDER ADVISEMENT RULING
Defendant’s Motion to Dismiss
The Court has received the Motion to Dismiss filed by the Defendant Diana Costain on
May 19, 2022; the Response thereto filed by the Plaintiff Villa Sendero Homeowners Association,
Inc. (“the HOA”) on June 3, 2022; and Ms. Costain’s Reply filed on June 9, 2022. The Court heard
argument on the Motion on June 17, 2022. For the reasons stated below, the Motion is denied.
Background
Ms. Costain owns a residential property within the Villa Sendero Homeowners Association
which she purchased in 2013. The property consists of a 35,000 square-foot lot containing a home
and multiple buildings and parking. The property is subject to a declaration of covenants,
conditions, and restrictions (“CC&Rs”) and has been since the time of her purchase.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
08/09/2022
Docket Code 926
Form V000A
Page 2
In 2020, the HOA adopted an amendment (“the Fifth Amendment”) to the CC&Rs
prohibiting rentals of less than 30 days. Ms. Costain filed this action challenging the HOA’s
authority to adopt this restriction in the Fifth Amendment.
Legal Standard
Arizona rules provide that a claim may be dismissed for failure to state a claim upon which
relief can be granted. Rule 12(b)(6), Ariz. R. Civ. P. Under the Rule, a claim must be dismissed
when the plaintiff is not entitled to relief under any interpretation of the facts. Coleman v. City of
Mesa, 230 Ariz. 352, 356 ¶ 8 (2012). A court is to look only to the pleading itself and the well
pled factual allegations therein. Cullen v. Auto-Owners Insurance Company, 218 Ariz. 417, 419 ¶
7 (2008). Mere conclusory statements are insufficient to state a valid claim. Id. Courts must
assume the truth of the factual allegations and all reasonable inferences therefrom in the light most
favorable to the pleading party. Logan v. Forever Living Products International Inc., 203 Ariz.
191 (2002).
Discussion
Ms. Costain argues that CC&Rs are contracts which must be interpreted as a matter of law.
She further argues that the Arizona Supreme Court has held that for CC&Rs to be amended, the
original declaration must give sufficient notice of the possibility of a future amendment. See
Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532, 506 P.3d 18, (2022).
Ms. Costain argues that, in this case, the CC&Rs do not restrict rentals and appear to
acknowledge the possibility that homeowners may rent their property. She notes that the CC&Rs
allow for “rent signs.” See Article VIII. She also argues that the CC&Rs allow a homeowner to
delegate his right of enjoyment to the common areas and facilities to tenants. See Article III,
Section 2. Ms. Costain argues that the general amendment provision in the CC&Rs did not provide
her with reasonable notice of the restriction on rentals under 30 days. She argues that the restriction
also decreases the value of her property.
The HOA argues that Ms. Costain’s position must fail because she did not file a declaratory
relief action against Association. The HOA argues that the plaintiff in the Kalway decision raised
challenges in the context of a declaratory action.
The HOA further argues that the original CC&Rs provided that each lot must be used only
for a single-family residence and prohibits any part of the premises to be used for “business,
professional, commercial or institutional purposes.” Therefore, according to the HOA, residents
like Ms. Costain had notice of restrictions on the use of property in the original CC&Rs. The HOA
argues that the amendment provisions in the original CC&Rs can be used to clarify the definition
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
08/09/2022
Docket Code 926
Form V000A
Page 3
of prohibited commercial operations to include short-term leases of a property as a bed-and-
breakfast.
Ms. Costain replies that a declaratory relief counterclaim is not required. She notes that the
civil procedure rules permit the court to consider a defense of a counterclaim.
She further argues that the HOA is not revoking or amending a restriction currently in
existence but is adding a new and different restriction that is untethered to the original CC&Rs.
She argues that short-term rentals are consistent with the use of a “single-family residence.” She
argues that operating a bed-and-breakfast is not using the property for business, professional,
commercial, or institutional use. She concludes that using a property for a short-term rental is not
more of a business operation than using a property for a long-term rental.
Under the Arizona Rules of Civil Procedure, a party need not file a declaratory judgment
action to raise a defense regarding the terms of CC&Rs. Nevertheless, THE COURT FINDS that
key terms and provisions in the CC&Rs are not defined. These include “single-family residence”,
“business, professional, commercial or institutional purposes,” and “rent.” Further development of
these terms and provisions is appropriate during the course of this action to determine whether the
Fifth Amendment to the CC&Rs was properly adopted. Therefore, the Court cannot conclude at
this stage that the complaint does not support the allegations of the HOA. The Court notes that the
Kalway decision was addressed initially by the trial court on motions for summary judgment, rather
than a motion to dismiss.
Conclusion
Based on the foregoing,
IT IS ORDERED denying the Motion.
09/27/2022 — CV2022004188 COSTAIN, DIANA 09/27/2022 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
09/28/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
09/27/2022
Docket Code 026
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf
Deputy
VILLA SENDERO HOMEOWNERS
ASSOCIATION INC
CHANDLER W TRAVIS
v.
DIANA COSTAIN
MARK BAINBRIDGE
MELISSA S DOOLAN
ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE MIKITISH
MINUTE ENTRY
The Court has received, reviewed, and considered the Parties’ Joint Report: Tier 2 Case,
filed September 20, 2022. Good cause appearing,
IT IS ORDERED adopting the Parties’ pretrial deadlines and stipulations regarding
scheduling, all in accordance with the formal written Scheduling Order signed by the Court
September 27, 2022, and filed (entered) by the Clerk September 27, 2022.
In further accordance with the aforementioned Scheduling Order,
IT IS ORDERED that the parties shall participate in a mandatory settlement conference.
This case is referred to the Court’s Alternative Dispute Resolution (ADR) Department for the
appointment of a judge pro tempore to conduct a settlement conference. The judge pro tempore
is requested to conduct the settlement conference no later than January 5, 2023.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
09/27/2022
Docket Code 026
Form V000A
Page 2
IT IS FURTHER ORDERED setting a virtual Trial Setting Conference on February
24, 2023 at 11:30 a.m. (time allotted: 15 minutes) for the purpose of assigning a trial date and a
final pretrial management conference date.
Counsel and self-represented parties shall have their trial calendars available.
The hearing(s) will be held by phone/video conference via the Court Connect platform.
Please join my meeting from your computer, tablet or smartphone.
www.tinyurl.com/jbazmc-cvj12
You can also dial in using your phone (audio only)
+1 (917) 781-4590
Phone Conference ID: 508 176 593#
More information regarding Court Connect can be found at:
https://superiorcourt.maricopa.gov/court-connect/
NOTE: If a message is received stating that the courtroom is locked, please remain on the
line. The previous hearing has not concluded. Once the prior hearing has concluded, admission
shall be granted into the virtual courtroom.
NOTE: All court proceedings are recorded digitally and not by a court reporter. Pursuant
to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a court reporter
is not mandated by Arizona Supreme Court Rule 30, the party must submit a written request to the
assigned judicial officer at least ten (10) judicial days in advance of the hearing, and must pay the
authorized fee to the Clerk of the Court at least two (2) judicial days before the proceeding. The
fee is $140 for a half-day and $280 for a full day.
If the parties are not familiar with the courtroom’s technology, they are encouraged to set
up an appointment with the court’s technology liaison at (602) 506-3269.
IT IS FURTHER ORDERED that prior to the Trial Setting Conference the parties jointly
discuss and attorneys must separately discuss with their clients the following items and arrive
prepared to discuss with the Court.
A) Prospects for settlement of this matter.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
09/27/2022
Docket Code 026
Form V000A
Page 3
B) Conversion of the trial from an in-person jury trial to a bench trial or virtual jury trial. In
considering the option of a bench trial, the parties can propose a reassignment of the case
to a different civil division for a bench trial upon agreement of the parties and the Court;
C) Prospects for referral to a Late Case Fair Limits Proceeding (please see:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/AdministrativeOrders/Ad
minOrders/AO%202020-072.pdf );
D) Prospects for resolution through the Certified Arbitrator Program (please see:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/AdministrativeOrders/Ad
minOrders/AO%202020-071.pdf
https://superiorcourt.maricopa.gov/media/6533/certified-arbitrator-list-
9112020.pdf )
E) If the case will proceed to an in-person jury trial, available dates for trial, anticipated length
of trial, essential in-person trial participants, and other issues that may be relevant in setting
the matter for trial.
IT IS FURTHER ORDERED that the parties must jointly prepare and submit 60 days
prior to the commencement date of trial a Trial Readiness Form, which includes the following
information:
Filing date of the Complaint;
Number of trial days including jury selection and anticipated time for deliberations;
Name and position of essential trial participants;1
1 Essential trial participants include necessary attorney(s), parties or party representatives, individuals identified by
the judge as essential, court reporter, interpreter, and expert witness(es) if observing trial in-person rather than
virtually. Remember, all civil courtrooms have the capability for hybrid trials with some participants virtual and
others in-person. Therefore, individuals can participate in the trial without being physically present in the courtroom.
Witnesses are considered essential trial participants and regardless of the number of witnesses called on a particular
day, the number of essential trial participants should only identify “Witness” and list the number as “1.” For example:
Essential trial participants:
1. Bob Jones: Plaintiff’s attorney
2. Cindy Shell: Plaintiff
3. Interpreter for Cindy Shell
4. John Shell: Plaintiff (John would prefer to appear in-person, but is willing to appear virtually)
5. Susan Wall: Defendant’s attorney
6. Jordan Glass: Defendant party representative
7. Witness
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
09/27/2022
Docket Code 026
Form V000A
Page 4
Number of jurors and whether the parties agree to a reduction in the number of
jurors;
Whether the parties request virtual jury selection, in-person jury selection or hybrid
jury selection;2
Whether the parties consent to the jurors utilizing Court Connect rather than
appearing in-person for trial;
Whether the case is appropriate for “stand-by status”;3
Number of prior trial settings and reasons for continuance;
Preferred dates for trial; and
Whether the case has unique challenges or scheduling issues.
Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of Court,
additional
copies
of
the
order
will
be
available
through
ECR
Online
at
www.clerkofcourt.maricopa.gov and from the Public Access Terminals at the Clerk of Court’s
offices located throughout Maricopa County.
8. Court reporter
Requested additional participants if spacing permits:
1. Plaintiffs’ paralegal
2. Defendant’s expert for Day 4 of trial (Defendant’s expert can appear virtually to observe trial is
spacing does not permit his physically appearance).
3. Defendant’s co-counsel
2 Hybrid jury selection refers to jurors who can appear from home entering the virtual courtroom while jurors who are
unable to appear virtually participate in-person.
3 Stand-by status refers to a trial that can begin if parties are given one-week notice.
12/14/2022 — CV2022004188 COSTAIN, DIANA 12/14/2022 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
12/15/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2022-004188
12/14/2022
Docket Code 375
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf
Deputy
VILLA SENDERO HOMEOWNERS
ASSOCIATION INC
CHANDLER W TRAVIS
v.
DIANA COSTAIN
MARK BAINBRIDGE
JOHN D LIERMAN
ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE MIKITISH
MINUTE ENTRY
The Court having received and reviewed the Civil Settlement Conference Report, signed
by Judge Pro Tempore John D. Lierman,
IT IS THEREFORE ORDERED accepting the Notice of Settlement and placing this
matter on the Dismissal Calendar for dismissal on or after February 14, 2023, without further
notice unless a Judgment is entered or filed or a Stipulation for Dismissal is presented.
IT IS FURTHER ORDERED deeming any pending matters moot.
IT IS FURTHER ORDERED vacating the Trial Setting Conference set for February 24,
2023 in this division.
