03/30/2023 — CV2023002424 ASSOCIATION INC, BELLASERA COMMUNITY 03/30/2023 HONORABLE TIMOTHY J. RYAN View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
04/03/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
03/30/2023
Docket Code 073
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE TIMOTHY J. RYAN
Y. Rodriguez
Deputy
RICHARD RUDNER, et al.
CHARLES W WIRKEN
v.
BELLASERA COMMUNITY ASSOCIATION
INC
JOSEPH A CADA
JUDGE RYAN
MINUTE ENTRY
The Court has received and reviewed Defendant’s Notice of Withdrawal of Defendant’s
Motion to Dismiss, filed March 27, 2023. Therefore,
IT IS ORDERED withdrawing Defendant Bellasera Community Association, Inc.’s
Motion To Dismiss, filed March 9, 2023.
06/27/2023 — CV2023002424 ASSOCIATION INC, BELLASERA COMMUNITY 06/27/2023 HONORABLE TIMOTHY J. RYAN View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
06/29/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
06/27/2023
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE TIMOTHY J. RYAN
Y. Rodriguez
Deputy
RICHARD RUDNER, et al.
CHARLES W WIRKEN
v.
BELLASERA COMMUNITY ASSOCIATION
INC
MARCUS R MARTINEZ
JUDGE RYAN
MINUTE ENTRY
IT IS ORDERED setting Oral Argument on July 12, 2023, at 11:00 a.m. (time allotted:
60 minutes) in this division regarding Plaintiff’s Motion for Summary Judgment, filed April 17,
2023, and Defendant’s Cross-Motion For Summary Judgment, filed May 22, 2023.
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.
Click here to join the meeting
www.tinyurl.com/jbazmc-cvj10
You can also dial in using your phone (audio only)
+1 (917) 781-4590
Phone Conference ID: 803 526 856#
More information regarding Court Connect can be found at:
https://superiorcourt.maricopa.gov/court-connect/
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
06/27/2023
Docket Code 094
Form V000A
Page 2
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.
07/14/2023 — CV2023002424 ASSOCIATION INC, BELLASERA COMMUNITY 07/14/2023 HONORABLE TIMOTHY J. RYAN View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
07/18/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
07/12/2023
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE TIMOTHY J. RYAN
J. Holguin
Deputy
RICHARD RUDNER, et al.
CHARLES W WIRKEN
v.
BELLASERA COMMUNITY ASSOCIATION
INC
MARCUS R MARTINEZ
SCOTT CARPENTER
JUDGE RYAN
MATTER UNDER ADVISEMENT
Courtroom 814 – East Court Building
11:02 a.m. This is the time set for an Oral Argument regarding Plaintiff’s Motion for
Summary Judgment, filed April 17, 2023, and Defendant’s Cross-Motion for Summary
Judgment, filed May 22, 2023, via Court Connect. Plaintiffs Richard Rudner and Darlene Rudner
are represented by counsel, Charles W. Wirken. Defendant Bellasera Community Association,
Inc. is represented by counsel, Scott Carpenter on behalf of Marcus R. Martinez.
A record of the proceedings is made digitally in lieu of a court reporter.
Discussion is held regarding the status of the case.
Oral argument commences.
For the reasons set forth on the record,
IT IS ORDERED taking this matter under advisement.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
07/12/2023
Docket Code 020
Form V000A
Page 2
11:35 a.m. Matter concludes.
09/06/2023 — CV2023002424 ASSOCIATION INC, BELLASERA COMMUNITY 09/06/2023 HONORABLE TIMOTHY J. RYAN View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
09/07/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
09/06/2023
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE TIMOTHY J. RYAN
B. Lopez-Mori
Deputy
RICHARD RUDNER, et al.
CHARLES W WIRKEN
v.
BELLASERA COMMUNITY ASSOCIATION
INC
MARCUS R MARTINEZ
JUDGE RYAN
UNDER ADVISEMENT RULING
The Court has considered Plaintiff’s Motion for Summary Judgment and accompanying
Statement of Facts filed April 17, 2023, Defendant’s Response, Cross-Motion for Summary
Judgment and accompanying Statement of Facts filed May 22, 2023, Plaintiff’s Reply, Response
and Controverting Statements of Fact filed June 6, 2023, Defendant’s Reply filed June 26, 2023,
and the argument of counsel.
Factual Summary
The parties do not dispute the relevant facts. Plaintiffs are homeowners in the Bellasera
Community where they have resided since 2005. Defendant is a homeowner’s association that is
responsible for monitoring and supervising the Bellasera community consistent with governing
CC&Rs. The Original and Amended CC&Rs authorize the Board to “adopt rules which modify,
cancel, limit, create exceptions to, or expand the Use Restrictions attached to and incorporated in
the CC&Rs.
On September 22, 2022, the Bellasera Board amended the “Vehicles and Parking” Use
Restriction set forth in subparagraph (g) of Exhibit C to the Amended CC&Rs. This action was
done with a vote of the homeowners. The amendment stated in relevant part,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
09/06/2023
Docket Code 926
Form V000A
Page 2
“Except as specifically provided in subsections 3 and 8 below, no more than one (1) passenger
vehicle, SUV or pickup truck may be parked on a driveway of a home in Bellasera overnight.”
The term “overnight” was defined as midnight to 6:00 a.m. Plaintiffs demanded defendant to
rescind this change, which defendant refused, leading to this litigation. Plaintiffs do not challenge
the language precluding parking overnight parking on the street. They only challenge the
prohibition of more than one vehicle parked on private driveways in the community.
Legal Analysis
The Court finds the proper application of the principals set forth in Kalway v. Calabria
Ranch HOA, LLC, 252 Ariz. 532 (2022). Those holdings are substantially briefed and explained
in Plaintiffs’ Motion for Summary Judgment and related pleadings which the Court incorporates
by reference.1
The changes set forth at the September 22, 2022 board meeting regarding the number of
vehicles on a private driveway was not foreseeable. The CC&Rs and use restrictions did not give
Plaintiffs sufficient notice. The subject and character of the previous parking restrictions pertains
to parking locations, not number of vehicles or parking hours. The mere fact that the board has a
general power to amend does not create foreseeability. The new restriction is unreasonable. It is
an unauthorized restriction on the use of private property.
The Court finds that A.R.S. §10-3304 is inapplicable. Plaintiffs have standing to challenge
and ultra vires corporate act, making a derivative action unnecessary.
IT IS ORDERED granting Plaintiff’s Motion for Summary Judgement.
IT IS FURTHER ORDERED denying Defendant’s Motion for Summary Judgment as
moot.
1 The Court notes that Plaintiffs’ counsel was the prevailing party’s counsel in this decision.
09/27/2023 — CV2023002424 ASSOCIATION INC, BELLASERA COMMUNITY 09/27/2023 HONORABLE TIMOTHY J. RYAN View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
09/28/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
09/27/2023
Docket Code 049
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE TIMOTHY J. RYAN
E. Wong
Deputy
RICHARD RUDNER, et al.
CHARLES W WIRKEN
v.
BELLASERA COMMUNITY ASSOCIATION
INC
MARCUS R MARTINEZ
JUDGE RYAN
MINUTE ENTRY
The Court has received, reviewed, and considered the Stipulation for Entry of Order and
Judgment and Permanent Injunction.
Good cause appearing,
IT IS ORDERED approving and settling the formal written Order and Judgment and
Permanent Injunction signed by the Court and filed (entered) by the Clerk September 26, 2023.
It is important that counsel and self-represented parties read the Judgment that the
Court signed. The Court may have made changes to the Judgment that the parties
submitted.
NOTE: The Court has signed a hard-copy version of the Judgment 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 Judgment has been scanned and docketed
by the Clerk of Court, copies of this order may be available through ECR Online at
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-002424
09/27/2023
Docket Code 049
Form V000A
Page 2
www.clerkofcourt.maricopa.gov or through www.AZTurboCourt.gov and from the Public Access
Terminals at the Clerk of Court’s offices located throughout Maricopa County.
