11-0944 (SPIN)P.O. BOX 1504
78-495 CALLE TAMPICO
LA QUINTA, CALIFORNIA 92253
Application Number: _117,0000_0944?
Property Address: 55051 RIVIERA
APN: 775 -153 -018 -
Application description: SPECIAL' INSPECTION
Property Zoning: MEDIUM HIGH DENSITY RES
Application valuation: 25592
T4ht 4 4a 4"
BUILDING & SAFETY DEPARTMENT
BUILDING PERMIT
Owner:
DEMPSEY , MORK/PATTY
55051 RIVIERA
LA QUINTA, CA 92253
Contractor:
Applicant: Architect or Engineer: D d NAUTILUS GENERAL CONTRACTORS
2045 FIRST AVENUE
Qis�J►�, C�` SAN DIEGO, CA 92101
O� � (619) 564-5500
2011/ Lic. No.: 807552
----------------------------------------------
LICENSED CONTRACTOR'S DECLARATION
I hereby affirm under penalty of perjury that I am licensed under provisions of Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professionals Code, and my License is in full force and effect.
License.Class: AB Li ns : 807 52
Date: yr-14C;ontractor:.
4,OWNER-BUILDER DECLARATION '
I hereby affirm under penalty of perjury that I am exempt from the Contractor's State License Law for the
following reason (Sec. 7031.5, Business and Professions Code: Any city or county that requires a permit to
.construct, alter, improve, demolish, or repair any structure, prior to its issuance, also requires the applicant for the _
permit to file a signed statement that he or she is licensed pursuant to the provisions of the Contractor's State
License Law (Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code) or
that he or she is exempt therefrom and the basis for the alleged exemption. Any violation of Section 7031 .5 by
any applicant for a permit subjects the applicant to a civil penalty of not more than five hundred dollars ($500).:
(_) I, as owner of the property, or my employees with wages as their sole compensation, will do the work, and
the structure is not intended or offered for sale (Sec. 7044, Business and Professions Code: The
Contractors' State License Law does not apply to an owner of property who builds or improves thereon,
and who does the work himself or herself through his or her own employees, provided that. the
improvements are not intended or offered for sale. If, however, the building or improvement is sold within
one year of completion, the owner -builder will have the burden of proving that he or she did not build or
improve for the purpose of sale.).- .r
(_) I, as owner of the property, am exclusively contracting with licensed contractors to construct the project (Sec.
7044, Business and Professions Code: The Contractors' State License Law does not apply to an owner of
property who builds or improves thereon, and who contracts for the projects with a contractor(s) licensed
pursuant to the Contractors' State License Law.). '
(_ 1 I am exempt under Sec. , B.&P.C. for this reason
Date: Owner:
CONSTRUCTION LENDING AGENCY
I hereby affirm under penalty of perjury that there is a construction lending agency for the performance of the
work for which this permit is issued (Sec. 3097, Civ. C.).
Lender's Name: _
Lender's Address:
LQPERDIIT
VOICE (760) 777-7012
FAX (760) 777-7011
INSPECTIONS (760) 777-7153
Date: 9/01/li
--- -------------------------------------------
WORKER'S COMPENSATION DECLARATION
I hereby affirm under penalty of perjury one of the following declarations:
I have and will maintain a certificate of consent to self -insure for workers' compensation, as provided
for by Section 3700 of the Labor Code, for the performance of the work for which this permit is
issued. -
I have and will maintain workers' compensation insurance, as required by Section 3700 of the Labor
Code, for the performance of the work for which this permit is issued. My workers' compensation
insbrance carrier and policy number are:
Carrier NTL UNION INS Policy Number 03304382
I certify that, in the performance of the work for which this permit is issued, I shall not employ any
person in any manner so as to become subject to the workers' compensation laws of California,
and agree that, if I should become subject to the workers' compensation provisions of Section
3700 oof/_the Labor Code pl s all forthwith mith01
o provisio
ate: ^Nplicant:
WARNING: FAILURE TO SECURE W EK 'COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL
SUBJECT AN EMPLOYER TO CRIMINAL ENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND
DOLLARS ($100,000). IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN
SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES.
APPLICANT ACKNOWLEDGEMENT
IMPORTANT Application is hereby made to the Director of Building and Safety for a permit subject to the
conditions and restrictions set forth on this application.
1. Each person upon whose behalf this application is made, each.person at whose request and for
whose benefit work is performed under or pursuant to any permit issued as a result of this application,
the owner, and the applicant, each agrees to, and shall defend, indemnify and hold harmless the City
of La Quinta, its officers, agents and employees for any act or omission related to the work being
performed under or following issuance of this permit.
2. Any permit issued as a result of this application becomes null and void if work is not commenced
within 180 days from date of issuance of such permit, or cessation of work for 180 days will subject
permit to cancellation.
I certify that I have read this application'and state that the above information is correct. I agree to comply with all
city and county ordinances and state laws relating to building construction, and hereby authorize representativ s
otthiss ccou/nty to
t on the above-mentioned property for ' ion pur o
Date:/- d �Oi/ rSignature (Applicant or Agent): �,�t.
Application Number . . . i1-00000944
Permit . . SPECIAL.INSPECTION
Additional desc .
Permit Fee . . . . 100.00 Plan Check
Fee
.00
Issue Date . . . . Valuation
. . .
. 25592
•Expiration Date 2/28/12
Qty Unit Charge Per
Extension
BASE FEE
100.00
----------------------------------------------------------------------------
Special Notes and Comments
PGA WEST REPAIR OF DRAINAGE IN SIDEYARD
BETWEEN SUBJECT PROPERTY.55051 RIVIERA
AND 55069 RIVIERA. STUCCO & WEEP SCREED
REPAIR.CONCRETE UNDERPINNING OF PATIO
AND SPA PER ENGINEER'S RECOMMENDATIONS.
THOMAS A NEWSOM OF BURKETT.& WONG
ENGINEERS
Fee summary Charged Paid Credited
----------------------------------------
Due
-----------------
Permit Fee Total 100.00 .00
.00
100.00
Plan Check Total .00 .00
.00
.00
Grand Total 100.00 .00
.00
100.00
LQPMIIT -
NAUT I LUS
general contractors Inc.
or
CITY OF LA QUANTA
BUILDING & SAFETY DEPT.
APPROVE®
FOR ONSTRUCTION
DAT PI ZOt gy
-4 [(-q44.
Project Name: Mork / Wyatt
Project Address:_55-051 & 55-069 Riviera La Quinta, CA 92253
AGREEMENT FOR CONSTRUCTION SERVICES
This AGREEMENT FOR CONSTRUCTION SERVICES (the "Agreement") is entered into at San Diego,
California, on August 1, 2011 by and between NAUTILUS GENERAL CONTRACTORS, INC., Contractors
License Number 807552 ("Contractor"), whose address is 2045 First Avenue, San Diego, California
92101, and PGA West Residential Association,,lnc. ("Owner"), whose address is 55-051 & 55-069 Riviera
La Quinta, CA 92253, with respect to the facts set forth below.
RECITALS
A. Contractor is in the business of providing general contracting services, and has agreed to provide specific
contracting services to Owner on the terms and conditions referred to herein below.
B. Owner is the Owner of PGA West Residential Association Riviera located at 55-051 & 55-069 Riviera La
Quinta, CA 92253, CA (the "Property"). Owner desires to engage Contractor to provide contracting
services as set forth in this Contract.
C. If this Agreement is entered into and signed by any party on behalf of a principal, the party signing the
Agreement agrees and understands that it will be jointly and severally bound, along with its principal, to
the terms and conditions of the Agreement, including the obligation to compensate Contractor.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I. THE WORK
Contractor is an independent contractor, and as such. will furnish to Owner all labor, materials,
services, supplies, permits, tools, equipment and machinery required (except as may herein otherwise be
provided) to do and perform within the time specked the following work (the "Work") on the Property:
Mork Sideyard Repair, as more fully described in Exhibit "A" Contract Documents (as defined below). The
Work shall be performed in accordance with the requirements of the Contract Documents.
Unless otherwise provided in the Contract Documents, Owner shall secure and pay for all permits
necessary for the proper execution and completion of the Work that are customarily secured after execution
of the Contract, Including but not limited to: building permits, grading permits, etc. Owner shall satisfy all
duties and responsibilities that Owner may have pursuant to any statute, ordinance, or regulation requiring
notification of adjacent or nearby property owners or proposed excavations as a result of the performance
of the Work. If entry on or encroachment upon adjoining property or public right-of-way is necessary to
perform the Work, Owner shall obtain any necessary permissions, permits or licenses and pay all costs and
fees therefore. Such costs and fees shall be in addition to the Contract Price.
Any modification, alteration, deviation, addition or omission to the Work shall be set forth in a
written change order ("Change Order"), signed by both Owner and Contractor. Change Orders shall reflect
the nature of the change, any increase or decrease in the Contract Price, and any increase or decrease in the
time for completion of the Work. Contractor shall not be responsible for any work other than the Work as
modified by Change Order.
ARTICLE II. CONTRACT PRICE
Owner shall pay Contractor for performance of the Work, subject to additions and deductions by
Change Order as provided in the Contract Documents, the Contract Price of Twenty -Five Thousand Five -
Hundred & Ninety -Two Dollars and Thirty -Seven Cents ($25,592.37). Payments shall be made as follows:
Payment due within 30 days completion.
ARTICLE 111. PROJECT SCHEDULE
Contractor shall commence work on the project on the following date: TBD, and shall prosecute the
work diligently to substantial completion within approximately 30 calendar days after substantial
commencement, subject to unavoidable delay as described herein.
ARTICLE IV. CONTRACT DOCUMENTS
The Contract, which constitutes the entire agreement between Owner and Contractor, consists of
this Agreement and the plans and speclflcations and other documents, if any, described in Exhibit "A"
attached hereto and incorporated herein. Such documents are incorporated into and form this Contract,
and all are as fully a part of the Contract as if attached to this Contract or repeated herein.
ARTICLE V. DEFINITIONS .
As used in the Contract, the following terms shall have the meanings set forth below.
1. Substantial Commencement: The term "Substantial Commencement" shall mean mobilization by
Contractor of material and/or labor on site.
2. Substantial Completion: The term "Substantial Completion" shall mean completion of the project to
the point it is ready for its intended use and purpose, exclusive of any miscellaneous, remaining pick-up,
punch -list or warranty items that do not prevent use of the Work by Owner.
ARTICLE VI. CONTRACTORS' LICENSE LAW
Contractors are required by law to be licensed and regulated by the Contractor's State License
Board. The board has jurisdiction to investigate complaints against contractors if a complaint regarding
a patent act or omission Is filed within four years of the date of the alleged violation. A complaint
regarding a latent act or omission pertaining to structural defects must be filed within 10 years of the
date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar,
Contractor's State License Board, P.O. Box 26000, Sacramento, California 95826,
ARTICLE VII. MISCELLANEOUS
1, Acknowledgment. Owner acknowledges that It has received from Contractor a signed original of this
Contract as of the date hereof.
2. Counterparts. This Agreement may be executed in counterparts, each of which, taken together, shall be
deemed one fully executed original.
3. FINANCING. THE OBTAINING OF A LOAN BY OWNER FOR ALL OR A PORTION OF THE CONTRACT PRICE
IS NOT A CONDITION PRECEDENT TO THIS CONTRACT. CONTRACTOR IS NOT PROVIDING OWNER WITH
FINANCING OF ANY KIND WHATSOEVER. CONTRACTOR IS NOT IN ANY MANNER ASSISTING OWNER IN
OBTAINING A LOAN, AND CONTRACTOR HAS NOT AND WILL NOT REFER OWNER TO ANY PERSON WHO
MAY LOAN OR ARRANGE FOR A LOAN OR ARRANGE FOR A LOAN FOR ALL OR A PORTION OF THE
CONTRACT PRICE.
4. Contract Documents Constitute Complete Agreement. The Contract represents the entire integrated
Agreement between the parties hereto and supersedes prior negotiations, representations or
agreements, either written or oral.
5. Disputes. Mediation. The parties agree to first try in good faith to settle any claims, disputes and
other matters In question arising out of, or relating to this Contract or the breach thereof, by
mediation In accordance with the Construction Industry Mediation Rules of the American Arbitration
Association ("AAA") or Judicial Arbitration and Mediation Services, Inc. ("JAMS").
6. Attorneys' Fees. In any action between the parties seeking enforcement of any of the terms of this
Contract or otherwise. arising from or relating to this Contract, the prevailing party shall be awarded
any and all its reasonable costs and expenses, including reasonable attorneys' fees and costs, and
expert witnesses' fees and costs. Venue for any mediation or litigation relating to this Contract shall be
in the County of San Diego, California.
Delays and Extensions of Time. If Contractor is delayed at any time in the progress of the Work by any
act, omission or neglect of Owner or its agents or employees, any separate contractor employed by
Owner, or by changes ordered In the Work, acts of God, fire, unusual delays in transportation, adverse
weather conditions, strikes, lockouts, boycotts, or other labor disruptions, acts of public enemy, riots or
civil commotion, failure of issuance of any permits, licenses or approvals within a reasonable period of
time, Owner's failure to make payment when due or other default hereunder, inability to secure
materials through regular channels, imposition of government priority or allocation of materials, or any
other causes, whether similar or dissimilar, beyond Contractor's reasonable control, then the time for
Contractor's performance of the Work shall be extended by Change Order for such time as the Work is
delayed.
8. Termination for Default. If Contractor defaults or persistently falls or neglects to carry out the Work in
accordance with the Contract Documents, Owner, after seven days' written notice to Contractor and
without prejudice to any other remedy Owner may have, may make good such deficiencies and may
.deduct the cost thereof from the payment then or thereafter due Contractor. Alternatively, at Owner's
option, and provided that sufficient cause exists to justify such action, Owner may terminate the
Contract if Contractor does not cure or commence to cure (and thereafter diligently proceed to
complete the cure) any default within seven (7) days after Owner delivers to Contractor written notice of
its election to terminate. Upon such termination, Owner may finish the Work by whatever method
Owner may reasonably deem expedient. If the unpaid balance of the Contract Price exceeds the cost of
finishing the Work, such excess shall be paid to Contractor, but if such cost exceeds such unpaid balance,
Contractor shall pay the difference to Owner.
9. Termination by Contractor. Should Owner fail to pay to Contractor any amount payable by Owner to
Contractor when It becomes due pursuant to this Contract or otherwise be in default hereunder,
Contractor may, by giving five (5) days written notice thereof to Owner, terminate its services under this
Contract, and/or stop work on the Project. Contractor's right to terminate or suspend the Work shall be
In addition to any and all rights and remedies Contractor may have under the Contract Documents or
applicable law. If Contractor so suspends the Work, In addition to any other damages, Contractor shall
be entitled to all reasonable costs of remobilization as an addition to the Contract Price If Contractor
subsequently resu mes the Work,
10. Warranty.,Contractor's sole and exclusive warranty is for one year from the date of Substantial
Completion of the Work. Owner has an obligation to properly maintain the Work and damage or
failure due to misuse, abuse or neglect is excluded.
11. Mold or other Funeal Contamination: Contractor performs no abatement or removal of mold or fungal
contaminates and Owner shall contract independent of this Agreement for performance of said work
should it be necessary for the performance of the Scope of Work underthis Agreement.
4
ARTICLE VIII. SPECIAL CONDITIONS:
IN WITNESS WHEREOF, Owner and Contractor executed this Contract as of the date set forth.
OWNER:
PGA West Residential Association, Inc.
By::-
Authorized Signature
Title: I�r'3�3/�51 d» AJC" f—:Zl d 10
Date:
By:
Authorized Signature
Title:
Date
CONTRACTOR:
NAUTILUS GENERAL CONTRACTORS; INC.
A California Corporation
By: Xzg<
Authorized Signature
Title: /
Date: � l z�O;M
"NOTICE TO OWNER"
(Section 7018, 7019- Contractors License Law)
Under the California Mechanics' Lien Law, any contractor, subcontractor, laborer, supplier, or other person or entity who
helps to improve your property but Is not paid for his or her work or supplies, has a right to place a lien on your home,
land, or property where the work was performed and to sue you in court to obtain payment, This means that after a
court hearing, your home, land and property could be sold by a court officer and the proceeds of the sale used to satisfy
what you owe. This can happen even if you have paid your contractor in full, If the contractor's subcontractors, laborers,
or suppliers remain unpaid.
To preserve their rights to file a claim or lien against your property, certain claimants such as subcontractors or material
suppliers are each required to provide you with a document called a "Preliminary Notice." Contractors and laborers who
contract with owners directly do not have to provide such notice since you are aware of their existence as an owner. A
preliminary notice is not a lien against your property. Its purpose Is to notify you of persons or entities that may have a
right to file a lien against your property if they are not paid. In order to protect their lien rights, a contractor,
subcontractor, supplier, or laborer must file a mechanics' lien with the county recorder that then becomes a recorded
lien against your property. Generally, the maximum time allowed for filing a mechanics' lien against your property is 9D
days after substantial completion of your project.
TO INSURE EXTRA PROTECTION FOR YOURSELF AND YOUR PROPERTY, YOU MAY WISH TO TAKE ONE OR MORE OF THE
FOLLOWING STEPS:
(1) Require that your contractor supply you with a payment and performance bond (not a license bond), which provides
that the bonding company will either complete the project or pay damages up to the amount of the bond. This payment
and performance bond as well as a copy of the construction contract should be filed with the county recorder for your
further protection. The payment and performance bond will usually cost from 1 to 5 percent of the contract amount
depending on the contractor's bonding ability. if a contractor cannot obtain such bonding, it may indicate his or her
financial Incapacity.
(2) Require that payments be made directly to subcontractors and material suppliers through a joint control. Funding
services may be available, for a fee, in your area that will establish voucher or other means of payment to your
contractor. These services may also provide you with lien waivers and other forms of protection. Any joint control
agreement should include the addendum approved by the registrar.
(3) Issue joint checks for payment, made out to both your contractor and subcontractors or material suppliers Involved in
the project. The joint checks should be made payable to the persons or entitles which send preliminary notices to you.
Those persons or entities have indicated that they may have lien rights on your property, therefore you need to protect
yourself. This will help to Insure that all persons due payment are actually paid.
(4) Upon making payment on any completed phase of the project, and before making any further payments, require your
contractor to provide you with unconditional "Waiver and Release" forms signed by each material supplier,
subcontractor, and laborer involved In that portion of the work for which payment was made. The statutory lien releases
are set forth In exact language In Section 3262 of the Civil Code. Most stationery stores will sell the "Waiver and
Release" forms if your contractor does not have them. The material suppliers, subcontractors, and laborers that you
obtain releases from are those persons or entitles who have filed preliminary notices with you. If you are not certain of
the material suppliers, subcontractors, and laborers working on your project, you may obtain a list from your contractor.
On projects involving Improvements to a single-family residence or a duplex owned by the individuals, the person
signing these releases lose the right to file a mechanics' lien claim against your property, In other types of construction,
this protection may still be Important, but may not be as complete.
To protect yourself under this option, you must be certain that all material suppliers, subcontractors, and laborers have
signed the "Waiver and Release" form. If a mechanics' lien has been filed against your property, It.can only be voluntarily
released by a recorded "Release of Mechanics' Lien" signed by the person or entity that filed the mechanics' lien against
your property unless the lawsuit to enforce the lien was not timely flied. You should not make any final payments until
any and all such liens are removed. You should consult an attorney If a lien Is filed against your property."
EXHIBIT "A"
NAUTILUS
general contractors Inc.
February 22, 2010
Peters & Freedman, L.L.P.
191 Calle Magdalena, Suite 220
Encinitas, Ca, 92024
Attn: Keenan Parker
Keenan,
Thank you for the opportunity to present the following revised proposal for the
repairs at PGA West Residential Association in La Quinta, Ca, specifically at the
Mork side yard.
We have based our proposal on the recommendations outlined in 'Mork
Sideyard Repair Recommendations' letter by Burkett and Wong Engineers and
dated February 16, 2010. We have attached said letter for reference.
Our attached proposal assumes the following:
1. Work to be performed during normal business hours as described in a
continuous manner through completion.
2. Any additional work not described in attached proposal is subject to
approval of additional costs prior to work commencing,
3. No additional design or permit fees of any kind are included unless
otherwise noted.
4. Relocation or coordination of any underground services other than
irrigation.
We are ready to begin repairs shortly after reaching a signed agreement. Please
let me know if you have any questions or concerns.
Best regards,
Jason Harris
www.noutilusgoneral.com
California 2045 First Avenue r San Diego, CA 92101 e P 619.564.5500 F 619.564.5516 o Ca Iic 807552
Arizona 8281 East Evans Road o Scottsdale, AZ 85260. P 480.607.9909 F 480.607.9919 in AZ Iic 173528/173529
EXHIBIT "A"
.
0
NAUTILUS
peMrei Cenlluclon Int,
2045 First Ave
San Diego, CA 92101
T. 619.564.5500
F. 619.564.5616 CA Ito. 807552
Repairs based an recommendation provided by Burkett 8 Wong Engineers letter dated February 16, 2DID Illfed'PGA West residential Assoc. Inc. /
Mork Sidayard Repair Recommendalione and lopogrophySurvey -Mork Residence' doled 7/07/09.
General Requirements
Temporary Barren / Site Protection / Equipment
Haul all and disposal of debris
Daily and Md clean-up
Pro)ecl Supervision / Management
Repair Scope
1. Remove all pian] material, hitgallon and drainage devices from side yard plonler extending to golf course,
2. Remove and dispose of sop In planter to expose Wyatt residence tooling. Prepare fooling for waferprooRng membrane,
3. Reprove the weep screed and 124nches of stucco ham Wyatt residence
A. Add 2x6 Blocbng to framed wall to provide backing for waterproofing material
B. Provide and Inslail waterproofing system (CJAt or approved equlvcdenl) and sheet mambmno product to exposed foundation extending
above grade level and properly lied Into existing building material. Seal all penetrations.
C. Provide and Install J -Drain or similar drdnage mat to direct subeudoce wafer away from structures.
D. Recomtruct weep screed and patch stucco previously removed to faclPtate repairs. Color coat to be comer to corner of all effected plones for
uniform appearance.
4. Import compactable soli and backfill the excavallon. Compact soil to a firm and unyielding condlllon (90%mini num).
S. Construct a new drainage system carolling of five (5) 124nch area drains with flat grates connected to a solid 34nch diameter PVC pipe
connected io the existing 64nch Inlet that drains to the street, Slope the new system at a minimum, 2% toward the existing Inlel.The Inlets should be
evenly spaced along the planter.
6. Slope the soft within the planter at 6% away from the Wyatt residence. Also slope the soll within the planter at 2% toward the golf course to drool
surtaco drainage. Verity positive oullall to golf course.
7. Construct a concrete underpin along the edge of the existing patio and spa slabs. The underpin shall be 8 -Inches wide extending 18-Inches-on-
centerinto the exlldng slob with horizontal number bar located 44nches from the base of the underpin. Provide a 44nch haunch to support the
edge of the exisling slabs. Concrete to be 3000 PSI type IVV.
8. Allowance lot design and Installation of approved plant malarial - Not Included
Summary
Subtotal $ 23,760
Overhead / Profit $ 4,752
insurance - 27. $ 570
Otlginal Total $ 29 082.24
DIscouTlt = 12% $ 3,489.87
Grand Total $ 25 592.37
CONSTRUCTION PROPOSAL
Date:
February 22, 2010
Job Name:
Mork / wyatt
Cllenl:
POA West Residential Association, Inc.
Location:
56-051 4 55.069 Riviera
LQ Qulnto, Co, 92253
Repairs based an recommendation provided by Burkett 8 Wong Engineers letter dated February 16, 2DID Illfed'PGA West residential Assoc. Inc. /
Mork Sidayard Repair Recommendalione and lopogrophySurvey -Mork Residence' doled 7/07/09.
General Requirements
Temporary Barren / Site Protection / Equipment
Haul all and disposal of debris
Daily and Md clean-up
Pro)ecl Supervision / Management
Repair Scope
1. Remove all pian] material, hitgallon and drainage devices from side yard plonler extending to golf course,
2. Remove and dispose of sop In planter to expose Wyatt residence tooling. Prepare fooling for waferprooRng membrane,
3. Reprove the weep screed and 124nches of stucco ham Wyatt residence
A. Add 2x6 Blocbng to framed wall to provide backing for waterproofing material
B. Provide and Inslail waterproofing system (CJAt or approved equlvcdenl) and sheet mambmno product to exposed foundation extending
above grade level and properly lied Into existing building material. Seal all penetrations.
C. Provide and Install J -Drain or similar drdnage mat to direct subeudoce wafer away from structures.
D. Recomtruct weep screed and patch stucco previously removed to faclPtate repairs. Color coat to be comer to corner of all effected plones for
uniform appearance.
4. Import compactable soli and backfill the excavallon. Compact soil to a firm and unyielding condlllon (90%mini num).
S. Construct a new drainage system carolling of five (5) 124nch area drains with flat grates connected to a solid 34nch diameter PVC pipe
connected io the existing 64nch Inlet that drains to the street, Slope the new system at a minimum, 2% toward the existing Inlel.The Inlets should be
evenly spaced along the planter.
6. Slope the soft within the planter at 6% away from the Wyatt residence. Also slope the soll within the planter at 2% toward the golf course to drool
surtaco drainage. Verity positive oullall to golf course.
7. Construct a concrete underpin along the edge of the existing patio and spa slabs. The underpin shall be 8 -Inches wide extending 18-Inches-on-
centerinto the exlldng slob with horizontal number bar located 44nches from the base of the underpin. Provide a 44nch haunch to support the
edge of the exisling slabs. Concrete to be 3000 PSI type IVV.
8. Allowance lot design and Installation of approved plant malarial - Not Included
Summary
Subtotal $ 23,760
Overhead / Profit $ 4,752
insurance - 27. $ 570
Otlginal Total $ 29 082.24
DIscouTlt = 12% $ 3,489.87
Grand Total $ 25 592.37
EUWE7r1'9V0NG
ENGINEERS
February 16, 2010 STRUCTURAL ENGINEERING
Mr. Keenan A. Parker, Esq. CIVIL ENGINEERING
PETERS & FREEDMAN, LLP SURVEYING
191 Calle Magdalena, Suite 220
Encinitas, California 92024 LAND PLANNING
Re: PGA West Residential Assoc. Inc. / Mork Sideyard Repair Recommendations
La Quinta, California
References: Burkett & Wong Engineers, PG.4 West Residential Assoc, Inc/Mork and Wyatt Matters, La
Quinta, California, dated September 11, 2009.
Dear Mr. Parker:
In accordance with your request, we are providing repair recommendations to correct the drainage issues
within the side yard planter.
1. Remove all plant material, irrigation and drainage devices from the side yard planter extending to the
golf course.
2. Remove the soil in the planter to expose the Wyatt residence footing. Prepare footing for
waterproofing membrane.
3. Remove the weep screed and 12 -inches of stucco from the Wyatt residence and construct
waterproofing per Nautilus Construction's recommendations. Reconstruct weep screed and stucco
system.
4. Backfill the excavation with soil compacted to a firm and un -yielding condition.
5. Construct a new drainage system consisting of five (5) 12 -inch area drains with flat gates connected
to a solid 3 -inch diameter PVC pipe connected to the existing 6 -inch inlet that drains to the street.
Slope the new system at a minimum 2% toward the existing inlet. The inlets should be evenly spaced
along the planter.
6. Slope the soil within the planter at 5% away from the Wyatt residence. Also slope the soil within the
planter at 2% toward the golf course. Verify a positive outfall to golf course.
7. Construct a concrete underpin along the edge of the existing patio and spa slabs. The underpin shall
be 8 -inches wide extending 18 -inches below the existing slab. Epoxy number 3 bars 18 -inches -on -
center into the existing slab with a horizontal number 3 bar located 4 -inches from the base of the
underpin. Provide a 4 -inch haunch to support the edge of the existing slabs. Concrete to be 300 psi
type IUV.
Thank you for this opportunity to be of service. Should you have any questions after reviewing this report
please call.
Sincerely,
BURKETT & WONG ENGINEERS
Thomas A. Newsom CE
Principal
3434 Fourth Avenue - San DIegorCA 92109 _.. .
P 619 299 5550 - P 619 299 9934 . www.burkett-wong.com
sort Diego — Las Vegas
ry
z
L A W OF FT C E S O F
CHARLES SHELTON
FACSIMILE 73726 ALESSANDRO DRIVE, SUITE 1113 TELEPHONE
= 611) ?a-9835 PALM DESERT, CALIFORNIA 92260 _ (Bou) 563-91135
July 18, 2011 CITY OF LA QUINTA
VIA U.S. MAII, AND FACSIMiI.E BUILDING & SAFETY DEPT.
AP ROVED
David C. Wermer FOR ONSTRUCTION
Law. Offices of David C. Werner
35-900 Bob Hope Drive DATEq� BY
Suite 105
Rancho Mirage, California 90815�,--
Re: PGA West Residential •Ass'n. Inc v Derimse� K Mork, et al erside
Dear Mr. Werner:
I atn responding to your, June 21, 2011 letter by which I received the signed
injunction for the first time. Subject to and without waimg any of the Morks' tights and
remedies on any possible appeal(s) or other legal rights including any stay of the injunction
or parts of the injunction pending appeal, Mr. and Mrs. Mork shall comply with the
injunctioq including coordination and cooperation with PGA West.
cc: Keenan Parker, Esq. (via U.S. Mail only)
Dempsey K. Mork
Very truly yours,
Charles E,, Shelton
e._
CITY OF LA QUINTA
R1,11LDING & SAFETY
DEPT.
AP P FI®V EION
FOR CONS
c� p��2913 b4� .
DAT r_uri
ADDENDUM TO
'Ike 31VG
This Addendum to Agreement for Construction Services ("Addendum") is made on August C ,
2011, by and between PGA WEST RESIDENTIAL ASSOCIATION, INC., a California non-profit
mutual benefit corporation ("Association"), and NAUTILUS GENERAL CONTRACTORS, INC.,
California Contractor's License Number 807552 ("Contractor").
RECITALS
(A) Association is a non-profit mutual benefit corporation organized to maintain, repair and
replace the Association's Common Area, among other duties.
(B) Contractor has submitted an Agreement for Construction Services ("Agreement's to
Association for Contractor's construction services in connection with repairs within the
Association, specifically at the properties located at 55-051 and 55-069 Riviera, La Quinta,
CA 92253.
(C) On or about August ")- , 2011, Association approved the Agreement with Contractor,
subject to the terms and conditions set forth in this Addendum. Concurrently with the
acceptance of the Agreement, Contractor and Association have agreed to execute this
Addendum. This Addendum shall be incorporated and made part of the Agreement as a
"Special Condition" set forth in Article VIII of the Agreement.
(D) . This Addendum and the Contract are collectively referred to herein as the "Agreement."
NOW, THEREFORE, in consideration ofthe promises and agreements contained in this Addendum
and Agreement, it is specifically agreed by the Association and Contractor that:
ADDENDUM
(1) Scope of Services. Contractor has submitted a Construction Proposal dated February 22,
2010, for repair work described therein, and as more particularly described in the Repair
Recommendations prepared by Burkett & Wong, dated February 16, 2010 (the "Work'. It
is specifically understood and agreed that the Work is to include all specified items as
detailed in Contractor's Construction Proposal and Burkett.. & Wong's Repair
Recommendations, as attached to the Agreement. Collectively, the term "Contract
Documents" as used in the Agreement and herein refers to Contractor's Construction
Proposal, Burkett & Wong's Repair Recommendations, the Agreement and this Addendum.
(2) Additional Services. Contractor shall provide the services set forth in the Agreement. Any
additional services not discussed in the Agreement and/or this Addendum will only be
compensated if Contractor provides a written estimate/bid of proposed extra services prior
to the commencement of such services and the Board of Directors or Association's
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Representative authorizes such work. Such additional work shall be subject to the same
terms and conditions of this Agreement.
{3) Payment. Contractor shall invoice Association one lump sum of $25,592.37, payable within
thirty (30) days of "substantial. completion" as that term is defined in the Agreement, subject
to any punch list items or deficiencies to be corrected as noted on a final walk. -through with
Contractor and Association's Representative and/or Association's consultant. Any punch
list items must be corrected to Association's satisfaction prior to payment of the lump sum.
Contractor shall prepare and present to the Association's Representative invoices supported
by reasonable data substantiating Contractor's right to payment, accompanied with lien
releases for all subcontractors, material suppliers and others who have performed work on
or furnished equipment or materials performed under this Agreement.
(4) Warr an : Contractor warrants that all Work will be of good quality, free from. faults and
defects and in conformance with the Contract Documents. All Work not conforming to these
standards shall be considered defective. Contractor expressly warrants and guarantees that
Contractor's own workmanship and materials (including materials manufactured by others)
under this Agreement to be free from defects and fit for the purposes intended for a period
of one (1) year from final payment of the contract price. If a defect in materials or
workmanship is discovered within one (1) year, Contractor warrants and agrees to remedy
the defect at no charge to the Association for the cost of materials, supplies and labor.
(5) Conflicts. In the event of any inconsistency or ambiguity between this Addendum and
Contractor's Agreement, this Addendum shall control.
(6) Commercial General Liability: Contractor will maintain separate commercial general liability
insurance, naming the Association as an additional insured, in an amount not less than
$2,000,000 per occurrence, and that shall not contain exclusions for homeowners'
associations and/or condominiums. Contractor, prior to the commencement of work, shall
provide a certificate of insurance which provides that said certificate CANNOT be canceled
except upon ten (10) days prior written notice to the Association.
(7) Worker's Compensation Insurance: Contractor shall maintain worker's compensation for
each and every employee that performs work on behalf of Contractor for the Association.
(8) indemnification: Contractor agrees to indemnify and hold harmless Association, its agents,
employees, officers, directors, and members (the "Indemnified Parties"), from all claims
against the Indemnified Parties which are due to Contractor's or Contractor's employees'
negligent, willful or unauthorized conduct. Such indemnification shall include, but is not
limited to, special, general and consequential damages, court costs, and all other reasonable
attorneys' fees associated with the sett] cment of a claim. Contractor agrees, pursuant to the
aforementioned conditions, to likewise indemnify the Indemnified Parties for all acts of
Contractor's subcontractors. Contractor further agrees to indemnify the Indemnified Parties
and hold them harmless from all claims against the Indemnified Parties for liens or
mechanic's liens which arise out of the performance of Contractor under this Agreement, and
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from and against any claims brought against the Indemnified Parties by Contractor's
employees due to injury or damage suffered in connection with the Work being performed
by Contractor.
(9) Restoration of Property: In the event Contractor causes damage during the course of the
work performed under this Agreement to any property of the Association or to its members,
or to other work on the property, the Contractor shall promptly remedy such damage and
repair such damage to the Association's reasonable satisfaction, or pay for the cost of
repairing such damage.
(10) Services To Be Performed: Contractor agrees to provide sufficient manpower to fulfill its
contractual obligation to complete the Agreement.
(11) Association's Right To Contract With Other Entities: Association has the right to contract
with other entities for any services not covered within the Agreement.
(12) Liability For Damage and Destruction: Contractor assumes liability for fire, theft, accident,
or any other damage or loss to the Contractor's supplies, materials, equipment, or of personal
property or belongings of Contractor's employees.
(13) Dispute Resolution: In the event that an action at law or equity is necessary to enforce or
interpret the terms of the Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and costs, in addition to any other relief to which that party may be entitled,
including experts' fees and costs. This provision shall be construed as applicable to the
entire Agreement. Notwithstanding anything in the Agreement to the contrary, venue for• any
such dispute resolution shall be Riverside County, California.
(14) Governing Law, Entirety of Agreement, and Partial Invalidity: The Agreement shall be
governed by the laws of the State of California. It constitutes the entire agreement between
the parties regarding the subject matter. Any prior agreements, promises, negotiations, or
representations not expressly set forth in the Agreement and this Addendum are or no force
and effect. If any provisions in the Agreement and this Addendum are held by any court to
be invalid, void orunenforceable, the remaining provisions shall nevertheless continue in full
force and effect. Contractor shall comply with all applicable Federal, State, County and City
statutes, regulations and ordinances, including but not limited to, the Immigration Reform
and Control Act of 1986.
(15) Assignment Restrictions: Contractor may not assign the Agreement to another company
without prior written approval of the Board of Directors. Such approval shall not be
unreasonably withheld.
(16) Limitation of Liability: In no event shall Contractor be liable for damage due to acts of God
or other acts or omissions over which it has no control. Such acts niclude, but are not limited
to, the following: wind, storm, hail, fire, flood, earthquake, freezing, vandalism, and theft.
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(17) Representatives: M 14CIAIV_� �-- shall serve as Association's Representative to
communicate with.Contractor in carrying out the direction for Association, unless otherwise
advised in writing by the Association's Board of Directors. Contractor's on-site supervisor
shall be , who shall remain in the position of supervisor for the
duration of the Work in the event he is still employed by Contractor.
(18) Interpretation. This Agreement shall be construed according to its fair meaning and as if
prepared by both parties hereto. This Agreement shall be construed in accordance with the
laws of the State of California in effect at the time of the execution of this Agreement.
(19) Authority to Bind. Each party signing this Agreement represents that it has full legal power,
authority and right to execute, deliver and perform its obligations under this Agreement and
each party's performance hereunder and the transaction contemplated hereby have been duly
authorized by all requisite actions on the part of such party and no remaining action is
required to make this Agreement binding.
(20) Joint Authorship: Each party has participated in the drafting and preparing of this Agreement.
For this reason, the general rule that ambiguities are interpreted against the drafter of a
document is inapplicable.
Dated: e , 2011
Dated: 2011
GA) IU 19ATMAgrwmentoWdend Nautllug Construction Agmt.wpd
4
PGA WEST RESIDENTIAL
ASSOCIATION, INC.
NAUTILUS GENERAL CONTRACTORS,
INC.
By;
Name:
Title-, F_e apGC
C
m
City 6f La. Quinta
Building Br Safety Division
La-Quinta, CA 922S3.,- (760) 777-7012
Building Permit Application and Tracking Sheet
Project Address I E -K
Owrier's Name: L 4—
A. P. Number:
Address:
Address: F -i cs -r Auewt46
Project Description:
Arch Engr., Designer: 8�AgMll
Telephone:
State Lic. 4:
Name of Contact Person:
Construction Type: Occupancy:
Project type (circle one): New Add'n Alter (IE75 D! -no
Telephone # of Contact Perion: (0
Estimated Viilueo'f ProjA ;)-6 5qa--
APPLICANT: DO NOT WRITE BELOW THIS LINE
Plan Sets
Plan Check submitted
Item Amount
Structural Calcs.
Reviewed, ready for corrections Plan Check Deposit
Truss Cales.
Called Contact Person Plan Check Balance
Title 24 Calts.
Plans picked up Construction
Flood plain plan
Plan's resubmitted Mechanical
Grading plan
Z'! Review, ready for correction �_e it Electrical
Grant Deed
Plans picked up
H.O.A. Approval
Plaits resubmitted Grading
IN HOUSE:-
3" Reyiew, ready for correctionirissuc Developer Impact Fee
Planniii Approval
Called Contact Person
Pub. Wks. Appr
1012te of permit issue
School Fees
WO Kelly McGalliard
Operations Manager
CCAM AMS
PGA WEST. PCAM
RESIDENTIAL ASSOCIATION, INC.
kellym@pgawest.org Ext. 15
54-320 Southern Hills, 760-771-1234
La Quinta, CA 92253-5665 Fax 760-771-5125
Total Permit iees
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LAW OFFICES OF DAVID C. WERNER
David C. Werner, Esq. [SBN: 67993]
Joseph G. Young, Esq. [SBN: 83069]
35-900 Bob Hope Drive, Suite 105
Rancho Mirage, CA 92270
Phone: (760) 321-1676
Facsimile: (760) 321-1567
Attorneys for Plaintiffs: DR: LEWIS WYATT
and GAIL WYATT
•�i
t,
(W -
CITY OF LA QUINTA
BUILDING & SAFETY DEPT.
APPROVED
FOR OIVSTRUCTION
DAT IN cot BY �✓
SUPERIOR COURT OF CALIFORNIA
COUNTY.OF RIVERSIDE
PGA WEST RESIDENTIAL ASSOCIATION,
)
INC., a California non-profit mutual benefit
)
corporation,
)
Plaintiff,
)
vs.
)
}
DEMPSEY K. MORK, an individual; PATTY A.
) .
MORK, an individual; and DOES 1 through 10,
)
Inclusive,
Defendants.
)
}
DR. LEWIS WYATT and GAIL WYATT
)
}
Plaintiffs
)
VS.
)
)
DEMPSEY MORK, PATRICIA MORK and PGA)
WEST HOMEOWNERS ASSOCIATION, DOES)
1 Through 25 and ROES I Through 25 Inclusive.
)
}
Defendants
)
AND ALL RELATED CROSS -ACTIONS
)
CASE NO.: INC 079090
Unlimited Civil
ASSIGNED JUDGE: Hon. Randall D. White
NOTICE OF ENTRY OF JUDGMENT
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PLEASE TAKE NOTICE that on June 1, 2011, the Riverside Superior, Court per the
Honorable Judge Randall D. White issued a Judgment in the amount of $1,558,721.71, plus costs, in
favor of PIaintiffs Lewis .and Gail Wyatt and against Dempsey Mork and Patricia Mork. Judgment
was also entered in favor for Cross -Complainants PGA West Residential Association in the amount
of $413,369.87, plus costs, and against Dempsey Mork and Patricia Mork in the above captioned
action.
A true and correct copy of the Judgment is attached hereto as Exhibit A and incorporated by
reference hereto.
The statements of decisions on behalf of this judgment are attached hereto as Exhibit B and
Exhibit C.
DATED: June 13, 2011
VJ110X*A'A'JZ1:4`:30
DAVID C. WfRNER
Jb-SEPH G. YOUNG
Attorneys for Plaintiffs: LEWI WYATT and
GAIL WYATT '
-2-
i
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
2
3 1 am a resident of the State of California; overthe age of eighteen years, and not a party to
4 the within action.. My businesS,.:,ad&eSsJs 35-9:0.0 Bob Hope Drive, Suite 105, Rancho Mirage,
'* d
CA 92270. On June: 13, 2011, I:served'the within:, o,.. cuments(s):
5
6
7 NOTICE OF ENTRY OF JUDGMENT
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9 [XI [MAIL] by placing the documents(s) listed above in the sealed envelope with postage fully
prepaid, in the United States mail at Rancho Mirage, California, addressed as set forth
below:
12 SEE ATTACHED "SERVICE LIST'
13
44.j I am readily familiar with the firm's practice of collection and processing correspondence
15 for mail. Under the practice, it would be deposited with the U.S. Postal Service on the same day
with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of
16 the party served, service is presumed invalid if postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
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18 perjury th
I declare under penalty of perj under e laws of the State of California that the above is
true and correct. Executed on June 13, 2011, in Rancho Mirage, California.
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AND MOTION FOR DETERMINATION OF REASONABLE LEGAL FEES
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"SERVICE LIST"
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WYA7T Y. MORK, ET AL.
3
rE
Keenan Parker, Esq.
Attorneys for Defendant:
_ .4
Peters & Freedman, LLP
PGA WEST RESIDENTIAL ASSOCIATION
191 Calle Magdalena # 220
INC, in related case PGA West v. Mork, INC
5
Encinitas, CA 92024
079090
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Charles E. Shelton, Esq.
Attorney for Defendants
Law Offices of Charles Shelton
DEMPSEY MORK and PATRICIA MORK
8
73726 Alessandro Drive
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Suite 103
Palm Desert, CA 92260
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Kirk Hermann
.
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Kindred Hermann Posey
12
2029 Century Park East; 14`h Floor
Los Angeles, CA 90067
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NOTICE OF MOTION AND MOTION FOR DETERMINATION OF REASONABLE LEGAL FEES
David C. Wemet
EXHIBIT "A"
7603211567 LAW OFFICE OF DAVID C. .
11:51:57 06-01-2011 215
If MARA
ATTORWYORPAMV*INWArFCRW(SOMMON" IM W+�M4
fORC+01�►IRr<OK2Y
-DAVYD C. WERNER
DAVID C. WERNER, ESQ.
LAW OFFICES OF DAVID C. WERNER
35-900 BOB HOPE DRIVE, SUITE 105
RANCHO MIRAGE, CA 92270
Teaawl6f+sao 760-321-1676 FAxp .mor mmo (760) 321-1567
E+wlAOOR!ba1O MC
WYATT and GAIL WYATT
4
ATT *W1on( P1a1ntiffs: LEWIS
1A
O[l�lleRtlt�Q R4V 4
3UpjAOR tJ*WOF c& ror tom CDUWW OF RIVERSIDE
3"WAIMIMS 46-200 OASIS STREET
fatwszcDRIM 46-200 OASIS STREET
SUN a 120"
cnTARazPCOW INDIO, . CALIFORNIA. 92201
wjmwwwe INDIO BRANCH
� 1�►
� t . SAwMA
GAIL WYATT
PLAfmW. LEWIS WYATT and
DEFENDAW: DP21PSW HM, RTRICIA 14M, SW► NUT RESIMMI" ASSOC
pdvlr ea JUDGMENT
CAMS
By Clark BlrDehfat x After Court Trial
INC 079090
By Court on Sdpukdon Defendant OW fm
Appow it Trial
JYo7Yag6rs r
I . BY DEFAULT
a. DetandW was Property served wUh a Copy Of the fwrrxMoms and complaint
b. Defandert faibd to anawsr the oomph M or appear and detsrfd the action witW the *ft allowed by taw.
Q OefendwWs dfdaul was entered by the deck k4M pialtrtlfh epppfatiom.
d CWWO Judgment (Code Civ. Pros, 158%0)). Defendant was sued Only on a WrItred or jYdpment of a court of
this state for the moovery of money.
e. Court Judgment (Code Civ. Proo.. $ NSM)). The coud Coneldemd
(1) ptaMWIftestimanyand o1herevidence.
(2) ptakiM when declaration (Cotte 0% Proc.. 9 565(d)).
2. ON STUMUT1014
L Plainijff and defendant agreed (sap dated) lhat a Judgment be enW0d in tMs cess. The court approved the 88putaled
lOdO and
b : the etgned w tten odpulMiorf ,ears (Aad In the ce6e
c. the Hip+Jation wad stated In open court :. the a*AzWn was anted on the record.
3. % AFTER COURT TRIAL Tha Jury was waived The oast oonaidered the evidence.
L The case washed on (date and SM): February S. 2011 at 1:30 P.M. through February 20, 2011
before(nWwdfjUdkWaAlcsrf: Honorable Randall D. White
b. Appearances b)r
x Plaintiff (name saofd; x PWnffs ettofney fnamir each):
(1) or. Lewis Wyatt and Gail Wyatt (i) David C. Werner
Lew Offices of David C. Werner
(2) PGA West Residential Association Inc. (2) Keenan Parker
Peters b Freedman
x Continued an Attachment 3b.
x Defendant (rmme each): x Delbrf wd Is slWm ey (name each)
(1) Dempsey K. Mork (1)Charles 9. Shelton
Law Offices of Charles Shelton
(2) Patricia Mork (2i Kirk Herman
Law Of tic" of Kirk Herman
Cordinued On Anfidut o 3b.
C. DefDnd" dd not appear at blat. t)e/endanl wad properly served wahh notice of Mal.
d x A stsoenfe d of decision (Cads Civ. Proc., 9 GM was riot x was requested.
pyal as s
FW0App*W(W0ao1r1J. JUDGMENT LJNW cow of C^d ftwedum NSIL 0846
Grow ceueY a c,ramw -
jua1m from JaAAn 1.20001 s
ME$
C
z.
704 o.
N
O
a
.1
7603211557 LAW OFFICE OF DAVID C
11:53:33 05-01-2011 3/5
PLAIN11FF: LEWIS WYATT and GAIL WYATT caaexwE�e
INC 079090
DEiFENDANT:DEMPSEY MORK, PATRICIA MORK,,PGA WEST RESIDENT
JUDGMENT es ENTERED AS FOLLOWS BY: THE COURT x THE CLERK
4. Stlpulaled JudgerenrJudgment is entered Ing to the stipulation of lis parties.
S. Parthm Judgment is
a. x for pWntflnams eMh): Lewis Wyatt and Gail c, x for txtlss-oOrrplai rant (aar om*): plaintiff,
Hyatt AND PGA west Residential ASSOCiatlon PGA Meet Residential Association Inc.
Inc.,
and apelnel defender, (names): oempsey K. Mork and agnHnd ao"49f "Ilm (name serh):
and Patricia Mork Defendants Dempsey and
Continued on Attachment So.
b. for defendent (mm each):
S. Amount'
a. x Defendant named in Rom So above must
Day ptsi O on the complaint
(1) x
Damages
S 1, 024, 272.65
(2) x
Prejudgment
i 89,100.00
interest at the
annual rats of
10 %
(3) x
Attorney bees
S 445, 349.06
(4) X
Coats
$ per coat b:11
(5)
Other (ori).
9 0.00
r(e) -
TOTAL
$1,558,721.71
Pa:rica Mork
Continued on Attachment ft
d. for ="4etenden1 (nems each):
t" Cton4 Landow named in item 5c above must pay
erl0ss�oornlplairlat, on the acwcornpgdnit
(1)
x Damages
S 41,592.37
(2)
Prejudgment
i 0.00
Intend at the
atlf%id rate of ;
95
X i; Altomey feet
i 311, 777.50
(4)
?;,x cam
$ per cost bill
(5)
01ho f (spe*V:
s 0.00
(0)
TOTAL
S 413,369.87
b. P18in0to MC01 a nothing *am defendant d. Crowoomplaillant to receive nothMg from
teemed in Poem wh cros"afendan, named in item 5d.
Defendant named in item 5b to recover Cmas•defendant named In item 5d to recover
costa S 0.00 coats b 0.00
and MWmey bees S 0 . oo and atfamay bees So. co
i. X Olher(specgy): The court enters judgment against DaMsey Mork and Patricia no k: the court ordera
permanent injuction consistent with tree courts Statement of Oeeision.
ami m
Honorable Randall D. W e
Date: Clerk, by
....... ..... .
yowl CLERK -8 CERTIFICATE (Opft".
I
M* lfat fhb Is a true copy of the original Jydgrneel on filo in Pons Court
Oats:
7Wtep (Nw tannery �. arrrp rap a ar a
Jucoili>Eltrr
I
1603211567
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LAwomaoFoAv1Dt. 11:54:55 06-01-2011 415
.,,
`PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF RNVERSIDE
I am a resident of the State of Califut,<nia, over the age of eighteen years, and not a party to
the within action. My business address is 35-900 Bob Hope Drive, Suite 105, Rancho Mirag%
CA 92270. On June 1, 2011, 1 served the within documents(s):
AMENDED JOINT JUDGMENT
[x) [QUI by placing the doctmnents(s) listed above in the seated envelope with postage fully
prepaid, in the United States mail at Rancho Mirage; California, addressed as set fbrth
below:
t I [FACSIMILE) by transminiaig Via Peesimlk the docwnent(s) listed above to the fax
number(s) set forth below on this date before 5:00 pxL
I ) [OVERNIGI IT MAIL) by overnight courier of the document(s) listed above to the
pwsoa(s)at the addresses) set forth. below:
[) [ PERSONAL DELIVERY] by causing delivery by
of the document(s) listed above to the person(s) at the addresses) W forth below.
[ONOINAL PROOF OF PERSONAL SERVICE 7V BB FIL W UNDER SEPARATE
COVER]
I) [PERSONAL SERVICE) by personally delivering the document(s) Bated above to
the person(s) at the address(es) set forth below.
SEE ATTACHED "SERVICI UST"
I am readily familiar with the firm's practice of collection and praeessing ew ropondenee
for anal. Under the prati ice, it would be deposited with the U.S. Postal Servite on the same day
with postage ther+eoa fully prepaid in the ordinary course of business. I am aware that on motion of
the party sawed, service is presumed invalid if postal cancellation date or postage meter date is
more thea one day after date of deposit for mailing in atHdavit.
I declare under penalty of pedury under the laws of the State of California that the above is
true and conecL Executed on June 1, 2011, in Ranch Mirage, California.
SaA =F qe-
SHERRI L. LEE
7603211561
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Dzywc Wam
LAW OFFICE OF MAVID G
a
"SERVICE LIST'
wyA7T V moxa Ena.
11:56:33 04-01-2011
S15
Keenan Parker, Esq.
Attorneys for Deferidaat:
Peters 8t Freedman, LLP
PGA WEST RESIDENTIAL ASSOCIATIO?
191 Celle Magdalena # 220.
INC. in related case PGA West v. Mork, INC
Encinitas, CA 92024
079090
Charles E. Shelton, Esq.
Attorney for Defendants
Law Offices of Charles Shelton
DEMPSEY MORK and PATRICIA MORK
73726 Alessandro Drive
Suite 103
Palm Desert, CA 92260
Kirit Hermaoa
Kindred Hermann Posey
2029 Century Park East, 10 Floor
Los Angeles, CA 90067
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David C Wang
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LAW OFFICES OF DAVID C. WERNER
David C. Werner, Esq. [3814: 67993]
Joseph G. Young. Esq. ISBN: 830691
35-900 Bob Hope Drive, Suite 105
Rancho Mirage, CA 92270
Phone: (760) 321-I676
Facsimile:.(760) 321-I567
Attorneys for Plaintiff's: DR. LEWIS WYATT
and, GAIL WYATT
-- OWLRIVEFiSIbE D
MAY 0 2 2011
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W. SALDANA --
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE
POA WEST RESIDENTIAL ASSOCIATION, }
CASE NO.:1NC 079090
INC., a California non-profit mutual benefit }
Unlimited Civil
corporation, )
Plaintiff, )
ASSIGNED JUDGE: Hon. Randall D. White
vs.
STATEMENT OF DECISIO ' '
}
DEMPSEY K MORK, an individual; PATTY A. j
MORK, an individual; and DOEO'thr+ough 10, }
Inclusive, )
Defendants. )
DR. LEWIS WYATT and GAIL WYATT )
)
Plaintiffs )
Y9. )
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DEMPSEY MORK, PATRICIA MORK and PGA)
WEST HOMEOWNERS ASSOCIATION, DOES)
I Through 25 and ROES I Through 25 Ltclusiv& )
)
Defendants )
kND ALL RELATED CROSS -ACTIONS )
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The Court makes the following findings of fad, order and awards.
1,
FINQINGS OF FACT
The Plaintiffs in this action are Drs. Lewis and Dail Wyatt ("Wyetts"), husband and wife.
Defendants in both actions are Dempsey K. Mork and Patricia Mork ("Morks'J, husband and wife.
The Wyatts and the Morks own adjoining condominiums within the PGA West Residential
Association. FGA West Residential Association Inc., is a "common interest development"
governed by California's Davis -Stirling Act, Civil Code Sections 1350, et seq. The affairs.of the
Association, its Members, and the property therein are governed by a Declaration entitled, "First
Restated Declaration of Covenants, Conditions & Restrictions for PGA WEST Residential
Association, Inc." ("Declaration") which was recorded on May 23, 2005 as Document No. 2005-
0409071 with the County of Riverside Recorder's Office. The Declaration superseded a previous
Declaration and Amendments thereto. The Declaration was duly adopted by a vote of the
Association's Membership, and has been the Declaration that the Association has been following
and enforcing since the date of its recordation. The Declaration was admitted into evidence'as
Exhibit 49. (See also Exhibit 50.)
Morks' common address is 55-051 Riviera, La Quints, California. Wyatts' common address
is 55-069 Riviera, La Quints, California. Marks purchased their condominium in March of 2003.
(Exhibit 99.)
T'he prior owner of the Wyatts' condominium was one Robert Oscar Mayer, who testified at
trial.
Mr. Mayer purchased the condominium in the early 90% and owned it until November of !
2004.
The condominiums, both the Mork and Wyatt properties are free-standing shucttmc% known
as "Fairways Condominiums." The Fairways Condominiums have. a unique feamm among
yondomirdums within the Association. Namely, they contain a Patio area, which is shown on the
Condominium Plan. (Exhibit 12.) This Patio area, which makes up a portion of whatwas ref
errod
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to as the "side yard" of the Fairways Units. is designated on the Condominium Plan as part of the
Unit. In other words, it is actually owned by the owner of the condominium. The Morks' Patie
area is adjacent to a zero lot line wall, which is one of the exterior walls of the Wyatts' home. The
wall itself is common area, to be maintained under the Declaration by the Association.
Mr. Mayer in late 2003, became aware of a water intrusion problem into his bedroom at 55-
069 Riviera. This was a period of heavy rains in the arca. The Morks were often doing
modifications in their Patio and side yard areas. Mr. Mayer concluded that this work caused the
water intrusion. "
The Association's general manager, Mr. Michael Walker, and its landscape manager, Mr.
William Bobbitt, were dispatched and eventually met with both Mr. Mayer and Mr. Mork. Mr.
Bobbitt noticed that the Morks' side yard area (which included the Patio) contained a narrow planter
area, which ran the length of Mayees 6 %e Wyatts) zero lot tine wa1L Bobbitt testified that dirt
and rock in this planter area was higher than the weep screed on Mayer's zero lot line wall.
According to Mr. Bobbitt's trial testimony, and that of Mr. Tom Newsom (the Association's civil
engineering expert), in order to facilitate proper drainage of the planter, the grade of the planter
should be at least four inches below the weep screed. According to Mr. Newsom's trial testimony,
a failure to maintain the grade at least four inches below the weep screed is a violation of the
Uniform Building Code„ which had been adopted by the City of La Quinta.
Bobbitt informed Mork that he needed to lower the grade in the planter area, so that it was
below Mr. Mayer's weep screed. Bobbitt also informed Mr. Mork that he should remove some rock
that he had in the planter area. because the rock was blocking some drain inlets that were in the
planter,
Mr. Bobbitt revisited the Mork's residence on or about December 18, 2003 (Exhibit 104),
RW found that Mr. Mork had lowered the planter grade in the Patio area, but had yet to lower the
grade further down in the Mork side yard area adjacent to Mat'er's home. This arra was designated
is Limited Use Common Area on the Condominium Plan.
Mork promised to comply with Mr. Bobbitt's suggestion, and Mork reimbursed Mayer for
he relatively nominal damage Mayer had sustained as a result of the water intrusion.
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I Mr. Mayer had not previously had any incidences of similar water inhvsion.
2 On November 22, 2005, Mr. and Mrs. Mork applied to the Association's Architectural
3 Committee for permission to construct a swimming pool (and to add other minor improvements) in
4 their back yard area, which was adjacent to a golf course, Under the Condominium Plan and the
5 Declaration, this back yard area is Limited Use Common Area.
6 The Association's application "package" for property modifications includes a document
7 entitled, "Conditions of Approval and Disclaimer," which Mr. Mork executed on November 22,
8 2005, and which he submitted to the Association along with his pool plans. (Exhibit 57.)
9 This document contains the following provisions:
10 1. Unless specifically agreed otherwise in writing by the Board of Directors,
approval of the submitted pians is expressly conditioned upon the owner
t l agreeing to assume the cost for any additional maintenance, directly or
12 indirectly caused by the proposed modificadoa(s), a"don(s), or.
improvement(s)...S
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3. The applicant fiuther agrees and represents that, as a condition of
l 4 submittal, they have independently reviewed and confirmed that the proposed
15 plans are correct front a legal, struchM14 architgctural, engineering, and/or
landscaping standpoint, and will not in aro+ way, other than that which has
16 been disclosed in the application, negatively impact the Association or cause
damage or additional maintenance to Association-owned and/or maintained
t7 property....
is PLEASE NOTE THAT APPROVAL OF THE PROPOSED PLANS BY
19 THE ASSOCIATION DOES NOT CHANGE OR ABROGATE THE
APPLICANT'S OBLIGATION TO OBTAIN ALL NECESSARY PERMITS
20 AND/OR COMPLY WITH ALL APPLICABLE GOVERNMENTAL
21 REGULATIONS.
22 On November 22, .2005, along with his application package, Mr. Mork delivered to the
23 1 Association a letter (Exhibit 54) in which he claimed to have had a, "Class A General Contractor's.
24 License," and in which he further claimed to have built "hundreds of str cares." Mr. Mork
25 indicated that, some years before, he had had a contractor's license and had built marry structti= as
26 an owner, developer, and general contractor. In that MID, W Mork was responsible for designing
27 menage for these structures to avoid water intrusion.
28 The Association's Architectural Committee approved the Modo' application to install a
Pool and, over a relatively lengthy period of time, the pool was constructed. During this time
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David C. Wane I STATEMENT OF DECISION
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period, the Marks also constructed or installed several other improvements and modifications whicl
had not been submitted to, nor approved by, the Architectural Committee. These improvement$
modifications included a misting system, new french doors leading from the interior of the Mori
residence to the Patio, quartzite "flagstone" on top of the concrete which formed the border of the
planter area adjacent to the Wyatts' home, and other minor modifications.
In or about July of 2007, the Association's Amhitecbjnd Committee visited Morka'
condominium, to make sure that the "as -built" condition of the pool and other improvements
compiled with the approved plans. During this process, Mr. 9obbid, acting as an advisor to the
Architectural Committees, again noticed that the dirt and rock in the Marks' planter area had again
been raised so that it was at, or in some places above, the Wyatts' weep screed. The Court finds
that at that time the Morks had placed dirt and rock in the side yard planter such that it was at the
level of or above the weep screed.
This process generated a letter from the Architectural Committee to the Marks, dated July
19, 2007 (Exhibit 59). in this letter, the Association's Architecbmal Committee set forth 17
different conditions that required corrective action. The 17th of these conditions was as follmn:
The dirt and gravel grade adjacent to the neighbor's unit, is above the weep
screed and must be lowered to prevent water intrusion damage'.
Mr. Mork promised to comply with this condition.
The Wyatts employed a company named Executive Errands to took after their condominium
during periods when the Wyatta were not there. In early April of 2008, an employee of Executive
Errands went to the Wyatts' home, and discovered evidence of water intrusion and mold damage.
The Association's Maintenance Manager, Mr. William Aceves, was sent to the Wyatts'
home. He took pictures of the demage inside the WydW home, and also the planter in the Marks'
Patiotside yard area, The photographs (Exhibits I - 11, inclusivek show that, once again, the level
of dirt and rocks adjaoeat to the Wyatts' zero lot Ime wall was at, or above, the height of the weep
screed. Moreover, the dirt -and rocks were so high in some ares near the swimming pool that they
were an absolute impediment to any drainage.
At trial, designated expert Tom Newsom rendered his opinion that a sump condition had
been created by W. Mork in constructing improvements in the limited common area and the patio
In
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11-! area He opined that the Mocks had altered the original drainage in the rear area of their unit
2 adjacent to the Wyatt's northern wall by removing an earthen swale, W. Newsom also opined that
3 the Mork hardscape — the concrete patio with quartzite cap was higher than the weep screed along
4 the Wyatt north wall and that the drainage in the planter was not sufficient to drain the weer in the
5 planter before it rose to the level of the weep screed. This condition. was the cause of the water
6 intrusion into Wyatt unit in April 2009. The Court makes a factual finding that the conditions
7 described by Mr. Newsom are true and correct.
8 Because of the water intrusion into the Wyatt unit, the Wyatts suffered water damage, mold
9 damage, loss of use of their unit, Out Of PockO expenses and emotional distress and are entitled to
10 attorney's few, costs, and interest.
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13 IL
14 FACTUAL FINDINGS AND g0UgTpZCI3I0N ON THE MW, SF OND,
15 FOURTH FIF7M SIXTH ANDS CAusFs OF ACT
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17 A. First Cause of i1con — Breach of cong3gt
The Court finds Plaintiffs have proven by a preponderance of the evidence that the contract
19 at issue, the Restated Declaration of Covenants, Conditions and Restrictions (CCR&R'S) of the
20 PGA West Residential Association (Court Exhibit #139), has been breached by the modo.
21 4 Due to the alteration of the area described in Article IV, section 5 of the CCR&RIs by the
22 homeowners at 55.051 Riviera, La Quints, California, Defendants Dempsey K. Mork and patricia
2.3 Mork them has, been a failure to provide maintenance, which he created a sump condition,
24 resulting in water intrusion and damage to the resid at 55_069 Riviera, La Qunta,
am California,
25 owned by, Plaintiffs, Dr. Lewis Wyatt and Dr. Gail Wyatt As a result of the breach of contract, the
26 Plaintiffs have been damage&
27 The court makes a actual finding that the Wyalts am owners of their unit and are members
28 of the association. Mr. and Mrs. Wyatt both testified that they were both owners of the unit,
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David C W. CTA'MALA CLrr ^ff
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±li identified as 55-069 Riviera, La Quinta,.Califbnnia. The court finds that the defense did not prove
2 otherwise. In the many days of trial. the Wyatts and all witnesses testified to their ownership of the
3 unit. POA West so stated The Wyatts so stated. Tile Wyatts also testified as to terms consistent
4 with them being the owner payment of the mortgage; payment of the property taxes, occupation of
S the home, and numerous other indications.
6 The court therefore makes a funding of fact that the Wyatts are owners and members of the
7 PGA West Association.
8 The Morks are unit owners occupying 55-051 Riviera, La Quinta, California. They are also
q members of the association. As members, the Morks and their unit are governed by the CC&R's.
l0 Under Civil Code Section 1354, the CC&R's are "equitable servitudes," which "inure to tho
11 benefit of and bind all owners as separate interests in the development." As such, "the servitudes
12 may be enforced by any owner of a separate interest or by the association or by both. Clearly the
13 , Wyatts have the right to enforce the CC&R's.
14 Under the CC&R's these provision are most pertinent in a breach of contract cause of
IS action. First, under Article 7, Section 12, entitled Nuisance, the CC&R's stats
16 "No noxious, illegal or offensive activity shall be carried out or conducted
17 upon any part of the property, nor shall anything be done which unreasonably
interferes with any other residents right to quiet enjoyment of his or her
18 property, or which endangers the health or annoys or disturbs, or is offensive
to such residence..
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20 Further, in pertinent part:
21 "No owner may interfere with the established drainage pattern over his or her
lot, which shall mean the drainage provided for at the tune of overall grading
22 of each lots was completed"
23 Under Section S of Article 4, subsection B of the CC&R's, provides that the Association
24 will no longer contain the limited common area when an owner "alters existing landscaping or
25 otherwise constructs improvements in a limited common area so as to inereasa the associations cost
26 of maintenance." 'The court finds that this condition applies and that the duty to maintain the
27 limited common area belongs to Mr. Mork.
28. Tire patio area is also Mr. Mork's maintenance responsibility.
La* Ofrxa . T-
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D&VW wtm4 STATFMPmT nif R¢Pietnu
I The court makes a factual finding in that Mr. Mork has violated these contract provisions.
2 Specifically, the Modes created a "sump" condition as described by Mr. Newsom. The
3 Morks between the years of 2005 and 2007 installed a pool and other improvements in their
4 backyard. They raised the hardscape, The grading associated with the pool and the other
5 landscaping removed the earthen swale and thereby removed drainage over a large section of his
6 property. The water then drained into the planter area that abuts the north wall of the Wyatt's
7 property. The Mork's patio was constructed so that it was above the wap screed of the lot line
8 wall. in addition, the dirt and the rocks in the planter were constructed and placW by the Morks
9 such that they were higher than or equal to the weep screed, in violation of applicable building
10 1 codes.
11 As per the opinion of Mr. Newsom, this condition created by the Morita caused the Wyatt's
12 water intrusion incident to occur. This constitutes a nuisance. It also constitutes a breach of the
13 Mork's duties and obligations to maintain property and also breaches the obligation not to alter
14 the original drainage.
15 Damages are available under applicable law for broach of the CCU%. See QmWany
16 Benedict Hills Estate Associatio,n. 41 CaLApp4th 179, 49 CaLRptr2d 166. Damages from water
17 intrusion is a nuisance. See Lusaier Y. San l orrento VaHOLWIter D3istricL 206 Cal.App3d 92, 253
18 1 Cal.Rptr4th 470.
19 Moreover, the breach of a duty set forth in the CUR's is itself a nuisance. See Cumijan v
20 Bmdict Hills EXate &j22jad supra.
21 Thus finally the court funds that the "nuisance" is a continuing nuisance. See Lehr L Baker
22 Hughes QjI Fj�e1d Options 165 CaLApp4th, 460 81 Cal.Rptr3d 819. Therein, the court indicated
23 that a continnuiag nuisance is one that "can be discontinued at any time."
24 line court makes a factual finding, that the nuisance created by Mr. Mork (i.e. the "sump"
25 condition on his property created by his improvements) can be abated at any time for reasonable
26 costs as set forth by Mr. Newsom, in his testimony,
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28 IL Second Cause of Action - Negllaence
UW Offim
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David C. Wam CT�TC�ICUTni
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The Court finds by a preponderance of the evidence that Plaintiffs, Dr. Lewis Wyatt and Dr.
Gail Wyatt have suffered damages and injury due to the negligence of the Defendants, Dempsay K.
Mork and Patricia Mork. The Defendants bad a legal duty to conform to a standard of conduct to
protect the Piaintif'1's. no Defendants- failed to meet this standard of conduct. The Defendant's
failure was the proximate cause of the resulting injury, and the Plaintiffs were damaged.
Negligence is defined In the CACI jury instructions. CACI 400 and 401. Under the CACI
jury instructions, negligence is "the fidlure to use reasonable care to prevent harm to one itself, and
f I to others."
The court finds by the preponderance of the evade rA that the Modes in fact created a
hazmdous condition in thea backyard as described by Mr. Newsome. Moreover, the Morns knew or
should have known that this conduct would result in harm. The Association (Mr. Moore, Mc
Bobbitt) explained to Mork, the "Mork" problem several times. T'he Morks were involved in a prior
similar water intrusion with Mr. Robert Qscw Meyer. In addition, PGA Wed by and through their
architectural committee brought to the Mork's attention in writing and in ca Iain meetings that dee
Marks had to abaft the situation in regard to the weep screed along the north wall of the Wyatt
property because the dirt and the grade had been built up so that the weep sercod was below grads.
The photographs from Mr. Aceves taken on the day of the water intrusion incident in April of 2008,
reflects the fad that the Marks made no changes to the grade and kept the weep screed submerged
under the dirt and rock. As such, the court concludes that the Marks acted unreasonably and failed
to take reasonable steps to prevent harm to the Wyans.
C. FourOb Cause of n — WungftR�let
no Croat finds that Plaintifla have prevailed on the merits at trial and will be irreparably
and continually harmed if the Court does not issue a permanent injunction. Pecuniary compensation
would not afford adapate relief. DefaWantl, Dampsey K Mork and Patricia Mork, are ordered to
provide reasonable access to allow PGA West Residential Association and/or its agents or designees
to remediata, fix and repair the north wail of the property at SS -069 Riviera, La Quinta, California,
owned by Plaintffs, Dr. Lewis Wyatt and Dr. Gail Wyatt and to provide sufficient drainage of the
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land adjacent to said property to avoid further water intrusion. Defendants, Dempsey K. Mork and
Patricia Mork and their agents and designees are to be prohibited from altering the drainage or land
in the described area.
Under the fourth cause of ae ion, the Wyatts seek injunctive relief to abate the nuisance
created by the Morks. California law is clear that in an action for a nuisance, a permanent
injunction can and should be issued to abate the nuisance when possible: See Mangi ' v. 'et.
General Coro. (199 t) 230 Ca1.App3d 1125, 281 Cal.Rptr 827.
See Tracy Y. i+errara (1956) 144 CalApp2nd 827. See Posey v. Levitt (1991) 229
Ca1.App3d 1236.
In Robbin v. Suggrior„r~ourt (1985) 38 Cal -3d 199, the court indicated that where a denial
of a preliminary injunction would result in great harm to the plaintiffs and the defendant would
suffer little harm, if it were granted, is a abuse of discretion to deny the request for relief.
'flte court therefore issues the following judgment on the fourth cause of action:
The Morks, pursuant to the CC&R's, are directed to provide the access to PGA West to
allow than to rernedy and remediate the north wall of the Wyatt property. The Morks are also
ordered, pursuant to the permanent inju=doo attached as Exhibit "A", to also establish the proper
drainage as set forth by Mr. Tom Newsom, the PGA West expect employed by Burkett & Wong.
Once the remediation has occurred, "as'built" plans are to be submitted to the court. An injunction
shall be issued precluding Mr. Mork from altering or changing or in anyway alnending 'the
"dation" or "fix" instituted by PGA West. In addition, an injunc don will be issued to prohibit
Mr.'Mork from anyway violating any provision of the building of the applicable building code in
regards to the planter area or the area directly abutting the north wall of the Wyatt property (Sea
Exhibit "A".)
D. Fifth Cause of Action — Doclantory Rellef
The Court finds that Plaintiffs are entitled to enforce against Defendants the terms of the
7C&R's. Defendants must reimburse Plaintiffs for costs and attorneys fees incurred in enforcement
Ifthe CC&R's, pursuant to Civil Code section 1354 et. seq.
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E. S_Istb Cause o(Acdon - Nuisance
The Court finds by a preponderance of the evidence that a continuing nuisance exists which
has resulted in the Plaintiffs being damaged and has interfered with the Plaintiffs fnea use of their
property at 55-069 Riviera, La Quints, California as a result of the continuing threat of flooding,
damage and destruction from water flow from the property at 55-051 Riviera, La Quints, California,
owned and controlled by Defendants Dempsey K. Mork and Patricia Mork Said nuisance shall be
abated forthwith by Defendants, Dempsey IL Mork and Patricia Mork.
The courts reasoning on the sixth cause of action is consistent with that under the breach of
contract provision regarding nuisance; The court finds that the Mork property and its configuration
as well as the Mork's refusal to repair and remediate the condition was in fact a nuisance, under
Civil Code Section 3479:
"anything that is injurious to health, including but not limited to ... an
obstruction tion to the free use of property thus to interfere with the comfortable
enjoyment of life or property...-
'Me
roperty,.."
'Me court finds that the initial water intrusion is certainly a nuisance, but the continuation of
the "sump" conditions described by expert Newsom and the Mork's refusal to remediate that
problem, constitutes a continuing nuisance. (See Bock Development v Southern Pacific (1996) 44
Cal.App.4a' 1160, 52 Cal.Rptr.2d 518.)
Simply put; the Wyatts are unable to enjoy their property because they arc unable to repair
their property so long as the Mork's refuse to remediate the nuisance.
F Seventh Cause Of Aetion - Trespass
The Court finds by a preponderance of the evidence that the water intrusion ir»to Ptaintifls,
Dr. Lewis Wyatt and Dr. Gail Wyad% property at 55-069 Riviera, La Quints, California, constitutes
L trespass caused by the actions or omissions of Defendants, Dempsey K Mork and Patricia Mork,
Aich has resulted in damages to the Plaintiffs.
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The court rinds that a trespass has occurred. A :rpcspasais atexYnnvton to ones n k:ol
physical possession of property. It is obvious that the water intrusion has deprived the Wyatts of
the right of possession of their property. nay aro unable to use their property due to the water
intrusion and damage that was caused. Moreover they are unable to repair their property because
W. Mork refuses to remove the cause of the trespass. As such, they have been damaged by the
initial trespass which occurred in April of 2008. Their inability to use their property is a continuing
damage as a result of that original trespass. The damages cited above and following in regards to
special damages, loss of use damages and emotional distress all flow from this trespass.
ES AW
Damages (10 2nd 61h and 7" causes of action)
Soecial Dainaeea
Out of 99—s—W Losses - $154,272.65
The court funds that the Wyatts have suffered actual damages to their home at 55-069
Riviera, La Quinta, CA. These damages include money and expenses that have already been paid to
mitigate the damages and also includes damages which the court feels, by a preponderance of the
evidence, the Wyetts will reasonably and likely incur. The total is $154,272.65.
Loss of Us - $270,000.00
The court further finds that the Wyatts have suffered a Ions of use of their home at 55-069
Riviera, La Quinta. California.
By a preponderance of the evidence, the court makes a 'factual finding that thew home
became unlivable in April of 2008, due to the Hability of the Mork's. The damages include mold
and water damage to walls, flooring and fin itum The walls and flowing and other items including
their kitchen had to be tore out to mitigate the damages.
This mitigation effort was reasonable and necessary (again a finding of fact.)
The evidence shows that the Morks maintained on their property a nuisance(Civil
1479) and negligent conditions described by the expert Tom Newsom. This condition created an
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I immediate and continuing peril that the water intrusion would Occur again and again unless
2 remedied per Mr. Newsoms recommended "fix" that has not occurred. (Hercicafter the "Mork
3 problem'I
4 no court finds that PGA West was the owner of the north wall of the Wyatt unit.
5 The court further finds that PGA West reasonably did jqj repair that wall pending the
6 remediation of the Mork problem by the Moft
7 The court makes a factual finding that, under the circumstances, the Wyatts were reasonable
8 in not repairing their unit. The court makes a further factual finding that the Wyatts were unable to
live in their unit, due to the Mork problem
10 UnderCivH Code 3334, the measure of damage is the reasonable rental value of the
11 property. no Wyans were designated as experts to give this opinion, and as experts, Opined that
12 the reasonable rental value of their home was $7,506. No con" evidence was given.
1.3 The court makes a factual finding that this sum is reasonable. The court makes a factual
14 finding that the Wynn home is a very desirable home of great quality and attraction (per the
15 testimony of the Wyatts and others), and is directly abutting one of the worlds most prestigious and
16 famous golf courses - - The Arnold Palmer course. $7,500 a month is the equivalent nightly chap
17 of $250.00 a day. To stay on the Arnold -Palmer course in a beautiful home at this price is a
18 bargain. A similar hotel would chap several times this amount.
19 The court makes a factual finding that the low of use began in April of 2008 and continues
20 to the prw=L The court awards the "loss of use" damages of $270,000.
21 Inteinst $89,100.00
22 Under Civil rod 3287, 3288, and 3289.5, the court finds that the specialdam" in tam
23 Of costs Of repair, Out of Pocket expenses, and the loss of reasonable rental value are certain or
24 Capable Of being made certain. Under 3288 the court exercises its discretion to award interest (here,
25 nuisance, trespass and negligence}. ne.intgrest rate is 109/
26 EMOtiQflAl DiAM —.Dr. Lewis Wyatt $300,000; Dr. Can Wyatt $300,=
27 The court finds that the Wyatts am entitled to damages for emotional distress. (Such
28 damages are based upon the first, (nuisance) second, sixth and seventh causes of action).
Lav Ofrwa
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1 Emotional distress is a general damage that is recoverable on theories of negligence; trespass
2 or nuisance. See Smith v County of „[m Angjlj� (1999) 214 CaL3rd 266, 262 Ca1.Rptr. 754, Sec
3 Porter Y. Fkmone. (1992) 6cal 4th965, 25 Cal.Rptr.2nd S50; See Andtase Y,- (1990) 218
4 CaLApp3rd 887, 267 Ca1.Rptr. 399 - - Emotional distress need not be alleged specifically. Undo
S CaMmia law, (sot authorities collected at Witkio, California Proc olure, 5th edition, section 9331
6' emotional distress is a damage that flows naturally fano the hasm alleged. The Wyatts alleged
7 general damages and ideNified emotional distress in answers to interrogatories and testified with
8 7spect to same at trial. .
9 The court makes a factual finding that the Wyatts suffered emotional diets as'a result -'6f
0 the'Mork's conduct. The court - . as shown below - finds thg the Mork"s arc liable to the Wyatt
11 for breach of contract, for negligence, for nunisance and for trespass. The Wyatt suffered emotional
12 distresses as a result of each of those breaches. no determination of the amount of the Wyates
13 emotional, distress is a calculation in the sound discretion of the trier of fact - - hero the court It
14 must be based upon evidence presented and it must be reasonable. The court, relying on the
15 evidctoe, makes the fallowing findings of fact: Gail and Lewis Wyatt are two, very haidworldng,'
16 higb-achieving, intelligent and accomplished citizem They art well within the age of rem an
17 most Americans conceive that ooncVt Dr. Lewis Wyatt is 73. He has a life expectancy of 10.2
18 years according to the CACI instruction 3932. The WyaM —ss 811 citizem-.aro unique based upon
19 their backSmun d training and experience. The Wyatt have struggled all their lives to achieve their
20 current status, Dr. Lewis Wyatt is a medical doctor, an accomplished ob-gyn having delivered over
21 5,000 babies. Dr. Gang Wyatt likewise has struggled throughout her life to achieve her status as an
.22 accomplished clinical psychologist. ` Dr. Lewis Wyatt is wdecvrated war Veteran having received
23 the Navy Model of Valor. Dr. Gail Wyatt is one of the first black fatale clinical psychologist in
24• California history. The court . finds that • the Wyatt Wert . in 2008 . focusing theirattaation on
25 relimmei'L They saw their home at SS -869 Riviera, as a place of solitude and quietness, T7uy also
26 saw it as a crowning arlrievenmt reflecting their hard word a "raward" for life well°lived They
T
27 saw it 29 a place where friends and family could ietine from the world and seek solace and happy
28 times. Due to the Mork problon, the Wyatt were deprived of their right to live tri their dream
Law Old
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ORTW C. wenm
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4
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St'AII MFNr OF OS10>r
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1 Emotional distress is a general damage that is recoverable on theories of negligence; trespass
2 or nuisance. See Smith v County of „[m Angjlj� (1999) 214 CaL3rd 266, 262 Ca1.Rptr. 754, Sec
3 Porter Y. Fkmone. (1992) 6cal 4th965, 25 Cal.Rptr.2nd S50; See Andtase Y,- (1990) 218
4 CaLApp3rd 887, 267 Ca1.Rptr. 399 - - Emotional distress need not be alleged specifically. Undo
S CaMmia law, (sot authorities collected at Witkio, California Proc olure, 5th edition, section 9331
6' emotional distress is a damage that flows naturally fano the hasm alleged. The Wyatts alleged
7 general damages and ideNified emotional distress in answers to interrogatories and testified with
8 7spect to same at trial. .
9 The court makes a factual finding that the Wyatts suffered emotional diets as'a result -'6f
0 the'Mork's conduct. The court - . as shown below - finds thg the Mork"s arc liable to the Wyatt
11 for breach of contract, for negligence, for nunisance and for trespass. The Wyatt suffered emotional
12 distresses as a result of each of those breaches. no determination of the amount of the Wyates
13 emotional, distress is a calculation in the sound discretion of the trier of fact - - hero the court It
14 must be based upon evidence presented and it must be reasonable. The court, relying on the
15 evidctoe, makes the fallowing findings of fact: Gail and Lewis Wyatt are two, very haidworldng,'
16 higb-achieving, intelligent and accomplished citizem They art well within the age of rem an
17 most Americans conceive that ooncVt Dr. Lewis Wyatt is 73. He has a life expectancy of 10.2
18 years according to the CACI instruction 3932. The WyaM —ss 811 citizem-.aro unique based upon
19 their backSmun d training and experience. The Wyatt have struggled all their lives to achieve their
20 current status, Dr. Lewis Wyatt is a medical doctor, an accomplished ob-gyn having delivered over
21 5,000 babies. Dr. Gang Wyatt likewise has struggled throughout her life to achieve her status as an
.22 accomplished clinical psychologist. ` Dr. Lewis Wyatt is wdecvrated war Veteran having received
23 the Navy Model of Valor. Dr. Gail Wyatt is one of the first black fatale clinical psychologist in
24• California history. The court . finds that • the Wyatt Wert . in 2008 . focusing theirattaation on
25 relimmei'L They saw their home at SS -869 Riviera, as a place of solitude and quietness, T7uy also
26 saw it as a crowning arlrievenmt reflecting their hard word a "raward" for life well°lived They
T
27 saw it 29 a place where friends and family could ietine from the world and seek solace and happy
28 times. Due to the Mork problon, the Wyatt were deprived of their right to live tri their dream
Law Old
of �..._.
ORTW C. wenm
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home, to live in their retirement years in peace and quiet. The Wyatts have lost three years of a life
that may or may not last into the future. AJI the while, despite being deprived of the use of their
home they had to make mortgage payments, utilities, taxes and other costa including homeowner
association dues. Moreover, they have lost any sense that their dream home or their dream
retirement can ever be achieved. This the covet finds by a preponderance of the evidence has
inflicted severe distress oi both Gail and Lewis Wyatt, The court makes a factual finding that this
distress is real and severe as reflected by the fact that the Wyatts have essentially been brought to
their knees with anxiety attacks and the recurrent nightmares often connected to post traumatic
stress disorder. The amount of distress inflicted upon them from the Monks, conduct is well
reflected in the fact that the Wyatts have been unable to deal with the stress.
Adding insult to injury, thea -so why they are being deprived of their retirement home
adds anger, frustration and extreme anxiety. The Mork problem could easily have been remedied by
the Morks at any time. The cost to repair the problem is estimated at under $25,000. The PGA
West Association has agreed to provide the ft The Mork's refused. The Morks have in addition
proffered unreasonable and. highly speculative reasons for their behavior - - all of which is
obviously distressfiri to the Wyatt.
In addition, the time spent by the Wyatts away ftm their work is also highly distressing.
Dr. Lewis Wyatt was forced to shut down his practice to deal with the Mork problem. It is a factual
finding of the court that this has caused Dr. Lewis Wyatt considerable suffering and anxiety as he
has close a personal relationship with his patients and is obviously disturbed by cancelling patients'
surgeries and appointments so that Dr.Lewis Wyatt and Dr. Gail Wyatt can attend to the Mork
problem.
The court fuither makes a factual finding that the Wyatis suffered seat emotional distress,
anger. frustration and dismay upon their first discovery of the trespass and nuisance of water
intrusion and mold problem In April of 2008. The Wywts, in pursuit of their dream retirement
Imm% had spent years and over 5200,000 dollars in remodeling their home and decorating it with
196s fnorn all over the World. The day they disoavcmd that much of what they had done was
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destroyed, was a day that they suffered greatly entitling them to claim emotional distress. All their
JI years ofhard worts were lost.
The court also makes a factual finding that Dr. Gail Wyatt suffered greatly at being unable
to have -her mother live or visit the Riviera home prior. to her death in December 2010. The court
finds Gail Wyatt suffered great anger, distress and anxiety.
The court also makes a factual finding that the Wyatta both have suffered greatly at
experiencing a sense of helplessness. That is, the court finds that the Wyatts have not, and do not
have control over their own unit, or their own lives on these issues. 'These are two individuals who
have earned the right to exercise at least a vote in how their lives ane directed. They cannot fix their
unit until FGA West fires their north wall and the FGA West HOA cannot do that until the Mork
problem is remedied. Mork has continued to refuse to allow this to occur (even during the lengthy
drawn out trial,Mr. Mork never once stated that he would remedy the "Mork" problem or even that
he would consent to the PGA West Association performing the fix). t
Finally, and perhaps most importantly, the court makes a factual finding that Mrs, Wyatt has
suffered great emotional distress, at seeing the emotional
distress, the sense of helplessness, anxiety,
the nightmares, the anger, and the frustration of her husband of 45 years. Likewise the court finds
that Dr Lewis Wyatt has suffered the same level of distress in seeing the effect of the Mork
problems on his wife. .
Adomeys Fees and Costs
PTaintif I.Dr. Lewis Wyatt and Dr. Gail Wyatt, aro the prevailing parties in this action.
Pursuant to contract and Civil Code section 1354 et. seq„ they are entitled to reimbursement of
attorneys fees and costs.
Civil Code 1354 authorizes the Wyatt$ to bring suit against the Mork's for violations of the
CC&R's. The court finds that the Wyatts were proper in bringing this cause of action, are the
Mailing parties, and as such em entitled to attorney's. fees,
a
Plaintiff's counsel is ordered to prepare an order for permanent injunction which is in
onfonnity with this Court's order. -Attached hereto as Exhibit "A, .
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David C. Wmw
LAW OFFICES OF DAVID C. WERNER
David C. Werner, Esq. ISBN: 67993]
Joseph G. Young, Esq. [SBN: 830691
35-900 Bob Nope Drive, Suite 105
Rancho Mirage, CA 92270
Phony (760) 321-1676
Fmimilc:-(760) 321-1567
Attorneys for Plaintiffs: DR. LEWIS WYATT
and GAIL WYATT
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE
PGAWEST RESIDENTIAL ASSOCIATION, ) CASE NO.: INC 079090
INC., it California non-profit mutual benefit )
corporation, ) Unlimited Civil
Plaintiff, )
vs.
PERMANENT INJUNCTION
} .
DEMPSEY K. MORK, an individual; PATTY A. )
MORK, an individual; and DOES 1 through 10, )
Inclusive, }
)
Defendant&
} r.
DR. LEWIS WYATT and GAIL WYATT )
Plaintiffs )
vs.
}
DEMPSEY MORK, PATRICIA MORK and POA)
WEST HOMEOWNERS ASSOCIATION, DOES )
I Through 25 and ROES 1 Through 25 Inclusive i
Defendants )
kND ALL RELATED CROSS -ACTIONS }
0
PERMANENT WWCTION
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David C. wama
The court, having considered the evidence at trial and the law applicable to this case:
ORDERS and herewith issues a PERMANENT 1NJONCTIION that:
1. DEMPSEY-K. MORK AND PATRICIA A: MORK, any subsequent purchasers,
successors, heirs, owners, assigns and agents are ORDERED and a PERMANENT
INJZINCI'lON Is ORDERED and herewith ISSUED. that as to 55-051 Riviera La Quinta, CA in
the area directly north of the north wall of unit 55-069 Riviera La Quinta, CA on the property
identified by street address 55-051 Riviera, La Quinta CA 92253, DEMPSEY K. MORK AND
PATRICIA A. MORK are ordered to:
a. Remove all plant material, irrigation and drainage devices frons the side yard planter
extending to the go#'course.
b. Place and compact soil in planter to a firm and unyielding condition providing a
minimum of 4 -inch clearance between the Wyatt's weep screed and the adjacent grade.
c. Construct a new area drainage system consisting offive (5) ti -cinch diameter area drains
with atrium grates connected to a solid 3 -inch diameter PVC pipe connected to the
existing 6 -inch inlet that drains to the street. The new drains shall be evenly spaced in
the planter between the existing spa and the eastern end of the planter. Local high
points will be located between the drain inlets, be a minimum of 4 -inches below the
adjacent weep screed and slope at 2% toward each inlet
d. Slope the soil within the planter S% away from the Wyatt residence.
e. Grade a new 2 -foot wide swale from the drain inlet located ai acent to the spa west to
the golf course. The Swale shall have a minimum slope of 2% toward the golf course.
Any vegetation, irrigation valves and piping; or plant materials including trees shall be
removed to accommodate a positive outfall to the golf course
This order is meant to apply to any and all different owners and ownership interests involved
at 55-051 Riviera La Quinta, CA including all common area, limited common area or Mork's unit
including the area designated as patio.
PERMANENT INJUNMON
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The court, having considered the evidence at trial and the law applicable to this case:
ORDERS and herewith issues a PERMANENT 1NJONCTIION that:
1. DEMPSEY-K. MORK AND PATRICIA A: MORK, any subsequent purchasers,
successors, heirs, owners, assigns and agents are ORDERED and a PERMANENT
INJZINCI'lON Is ORDERED and herewith ISSUED. that as to 55-051 Riviera La Quinta, CA in
the area directly north of the north wall of unit 55-069 Riviera La Quinta, CA on the property
identified by street address 55-051 Riviera, La Quinta CA 92253, DEMPSEY K. MORK AND
PATRICIA A. MORK are ordered to:
a. Remove all plant material, irrigation and drainage devices frons the side yard planter
extending to the go#'course.
b. Place and compact soil in planter to a firm and unyielding condition providing a
minimum of 4 -inch clearance between the Wyatt's weep screed and the adjacent grade.
c. Construct a new area drainage system consisting offive (5) ti -cinch diameter area drains
with atrium grates connected to a solid 3 -inch diameter PVC pipe connected to the
existing 6 -inch inlet that drains to the street. The new drains shall be evenly spaced in
the planter between the existing spa and the eastern end of the planter. Local high
points will be located between the drain inlets, be a minimum of 4 -inches below the
adjacent weep screed and slope at 2% toward each inlet
d. Slope the soil within the planter S% away from the Wyatt residence.
e. Grade a new 2 -foot wide swale from the drain inlet located ai acent to the spa west to
the golf course. The Swale shall have a minimum slope of 2% toward the golf course.
Any vegetation, irrigation valves and piping; or plant materials including trees shall be
removed to accommodate a positive outfall to the golf course
This order is meant to apply to any and all different owners and ownership interests involved
at 55-051 Riviera La Quinta, CA including all common area, limited common area or Mork's unit
including the area designated as patio.
PERMANENT INJUNMON
M
t It is further ORDERED and a PERMWANT IN LIMION is ORDERED and
2 herewith ISSUED that once the repair, modifications and effort in item #1 aro accomplished:
3
4 2. DEMPSEY K. MORK AND PATRICIA A. MORK, any subsequent purchasers,
5 successors, heirs, assigns owners and agents regarding the property identified by street address 55-
6 051 Riviera, La Quints, CA 92253 are ORDERED and directed to not destroy, modify, alter or
7 change said repairs, itemized in item #1 above in any way without the specific order of this court
8 This order is meant to apply to any and all different owners and ownership interests involved
9 at 55-051 Riviera La Quints, CA including all common area, limited common area or Mork's unit
10 including the area designated as patio.
I1
12 It is farther ORDERED and a PERMANENT IN.IUNC>F'iON is ORDERED an
13 herewith ISSUED that:
14 3. DEMPSEY K. MORK AND PATRICIA A. MORK, and any subsequent purchasers,
15 successors, heirs, assigns, owners and agents of 55-051 Riviera La Quinta, CA are ordered not to
16 interfere with or deny access to PGA WEST RESIDENTIAL ASSOCIATION, INC. to the lot line
17 wall on the property line between 55-051 Riviera, La Quinta CA 92253 and 55-069 Riviera, La
18 Quints, CA 92253 for purposes of PGA West Residential Association Inc.effectuating necessary
19 repairs to said wall andfor accomplishing the repairs to said wall.
20 This order is meant to apply to any and all different owners and ownership interests involved
21 at 55-051 Riviera La Quints, CA including all common area, limited common area or Mork's unit
22 including the area designated as patio.
23
24 It is farrthcr ORDERED and a PERMANFM MUNCTION It ORDERM lgd
25 herewith ISSUED that:
26 4. DEMPSEY IL MORK AND PATRICIA A. MOM any subsequent purchasers,
27 successors, heirs, assigns, owners and agents regarding property identified by street address as 55-
28 051 Riviera, La Quinta CA 92253 ani ORDERED and directed to not destroy, modify, alter or
(JW Mika .
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Dwid C. Wa= PERMANENT 1MUNCTION
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David C Weng
change the repairs by PGA WEST RESIDENTIAL ASSOCIATION, INC. to the lot line wall on
the property line between 55-051 Riviera, La Quints CA 92253 and 55-069 Riviera, La Quints CA
192253.
This order is meant to apply to any and all different owners and ownership interests involved
at 55-051 Riviera La Quints, CA including all common areas, limited common areas or Mork's unit
including the area designated as patio.
It is further ORDERED and a PERMANENT INJUNCTION Is ORDERAD and
hergwitb ISSURD that:
S. DEMPSEY K. MORK AND PATRICIA A. MORK, any subsequent purchasers,
successors, heirs„ assigns, owners and agents regarding property identified as street address 55-0S 1
Riviera, La Quints CA 92253 are ORDERED and directed as follows:
With regards to repairs cited in item number 1; The Mork's are prohibited from installing
plants in the reconstructed planter that will block or limit the effectiveness of the drains or
drainage Swale; Installing any additional soil to the planter or amendments added to the
e.*ting soil, The Mork's are prohibited from altering the grades in the planter so as to
create ponding anywhere along the WyaWMork property line, The Mork's are prohibited
from allowing any drain inlet in the repaired planter area from being blocked in any way
and to make sure all drain inlets shall be inspected monthly and cleaned as needed as to not
restrict flow from the planter into the drainage system.
This order is meant to apply to any and all different owners and ownership interests involved
at 55-051 Riviera La Quints, CA including all common area, limited common area or Mork's unit
including the area designated as patio. .
It is further ORDERED and a PERMANENT WOUNCTION is ORDERED and
herLwltb ISSUED that:
6. DEMPSEY K- MORK AND PATRICIA A. MOM any subsequent purchasers,
successors, heirs, assigns, owners and agents regarding property identified as street address 55-051
a�
PERMANFM 94JUWn0N
e
s: F
I Riviera, Le Quinta CA 92253 are ORDERED and directed to not violate any and all applicable
2 laws, or applicable building codes with regard to any activity on their pact regarding 55-051 Riviera
3 La Quints, CA.
4 This order is meant to apply to any and all different owners and ownership interests involved
5 at 55-051 Riviera La Quints, CA including all common ares, limited common arra or Mork's unit
x 6 including the area designated as patio.
7 This order and the permanent injunction is meant to be interpreted liberally to effectuate. its
8 purpose as set forth in the Statement of Decision and Judgment entered in this caf
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IT IS SO ORDERED.
(Date)
(Judge of the Superior Court)
PERMANEWr IN>tlNt: RON
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Law office
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David C. Wemn
I
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I urn a resident of the State of California, over the age of eighteen years, and not a party to
the within action. My business address is 35-400 Bob Hope Drive, Suite .105, Rancho Mirage,
CA 92270. On March 3, 2011,1 served the within documents(s):
STATEMENT OF DECISION 1PROPOSEDI
[XJ INAIL) by placing the documents(s) listed above in the seated envelope with postage fully
prepaid, in the United States mail at Rancho Mirage, California, addressed as set forth
below:
] 1 [FACSIMILE] by transmitting Ple Facsinge the document(s) listed above to the fax
number(s) set forth below on this date before 5:00 p.m.
[OVERNIGHT MAIL] by overnight courier of the document(s) listed above to the
person(s)at the address(es) set forth below.
[ J ]PERSONAL DELIVERY] by causing delivery by
of the document(s) listed above to the person(s) at the address(es) set forth below.
[ORIGINAL PROOF OF PERSONAL SERVICE TO BE FILLED UNDER SEPARATE
COYER]
[ [PERSONAL SERVICE] by personally delivering the document(s) listed above to
the pesson(s) at the address(es) set forth below.
SEE ATTACHED "SERVICE LIST"
F,asn readily familiar with the firm's practice of collection and processing correspondence
for mail. Under the practice, it would be deposited with the U.S. Postal Service on the same day
with postage thereon fully prepaid in the ordinary course of business, I am aware that on motion of
the party served, service Is presumed invalid if postal cancellation date of postage meter date is
more than one day after date of deposit for mailing in affidavit.
1 declare under penalty of per ury under the laws of die State of California that the above is
true and correct. Executed on Mardi 3, 2011, in Rancho Mirage, CaUfom'
SHERRI L. LEE
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Law olTito
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David C. wemw
a
Keenan Parker, Esq.
Peters & Freedman, LLP
191 Calle Magdalena # 220
Encinitas, CA 92024
'Thompson & Colegate, LLP
3610 Fourteenth Street
PO Box 1299
Riverside, CA 92502
Fax. (951) 781-4012
Charles E. Shelton
Law Offices of Charles E. Shelton
73-726 Alessandro, Suite 103
Palm Desert, CA 92260
Kirk Hermann
Kindred Hermann Posey
2029 Century Park East, 14`h Floor
Los Angeles, CA 90067
Fax: (949) 258-5063
Law Offices of Jeffrey E. Karpel
4515 Sherman Oaks Avenue
Sherman Oaks, CA 91403
"SERVICE LIST"
WYAIT V. MORD LT AL.
Attorneys for Defendant:
PGA WEST RESIDENTIAL ASSOCIATIOP
INC. in related case PGA West v. Mork. INC
079090
Attorneys for Defendant PGA WEST 1
RESIDENTIAL ASSOCIATION in master
case USAA v. Mork, INC 081483
Attorney for Defendants
DEMPSEY MORK and PATRICIA MORK
Associated In Attorney for Morks
Attorney for Plaintiff
UNITED SERVICES AUTOMOBILE
ASSOCIATION (USAA)
•.a9-
STATEM ENT OF D10XS N
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EXHIBIT "C"
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PAGE 89
F 0 L E 0
MAY 311011
V. SALDAM
SUPERIOR COURT OF CALffORN1A
COUNTY OF RIVERSIDE, =10 BRANCH
FOA WEST RESIDENTIAL
) CASE NO.: INCO79090
ASSOCIATION. INC, a California non-
profit Mutma bmebt corporation,9iATSMSI�
H' OF
DB.CISION
PtaintM
V,
judge: Hmt. Randall D. White
DEMPSEY K. MORK, an Individual;
) Action Fitc* hdy A 2008
PATTY A. MORK, on lndividw4
) Tdai Date: Febmary 7, 2011
and DOES l throush 10, inchaive,
) Unlb iW CJW Cane
)
Defendants.
)
LEWIS WYATT and GAIL WYATT,
}
}
PtaantiSs,
V.
DEWSET MOM PATRICIA MORK and
j)
}
PGA WEST RESIDENTIAL
))
ASSOCIATION, INC.. DOES 1 through 23
)
and ROES I through 25, inclusive
;
" Dofendeats.
)
AND ALL IMEM CRW=UTI57W-
(pr"Onq
1
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I jusboweaddedcarte came ort reldulyft Rid onfabnMY7,2011,InDcPw=wA2H
qfdw sbuvoendtled cmttU flonmiNeRandall D. Whitc,Judgepraddingwithm A*Y, adwu
tried on that due and on February 8.9,10,14,13,16,17,18, 22, 23, 24, 2S, and A 2011. Anomys
Kaman A. Puka and Zachary R. Budth 9POINd as W90301 for PlxMff POA WC9 Residential
I AsepciatimIna. AaomeyDavidC-WanerqMcmWascows dfw?tWndftLmbWyedand GW
Wyatt. Attom"s Chafes L Shelton and Xhk Hamann appeared as counad for Defendants
Dempsey K Mark and Patricia Mark.
Ofal and dowmaifty evideno e was introduced an behalf of the Mpeodve Parties ad the
cause was argued ad ofti#W for docisiaL The Court, having ounsidaed the evidence and heard
theargumem ofcounsd and being fWjy&dWq4 imathelbilowb* statemad ofdacision lNhWk%
the &anjal and legal bags therefor, with mpect to tho Complaint filed by Plaintiff PGA West
Residential Associetion, Inc. on July H,2008:
1, With regard to the Fiat Cause ofAction forlitesch afRewded Covenant, the Court's
dedsim is that Plaintiff PGA Wen Residential Asso"on, bw has proven by a Pr9mWervom of
tk"u=dwtkFirARemtsdDvJamtionofCoveuwbC"fimmtdRmbiWOOCCC&RO
of the PGA Wen Rasidendal Association (Court Exhibit #M baa beet breached. 'Hie CC&Rswere
fewIded in the'office of the Riverside County Recorder on May 23, 2005. The COMMM and
Reettic6ons contained in the CWts cowdtuft apitable savitudas pmaiant to Cwt! Gxk section
1354 dw imm to the bansilt of and we binding upon A owns and tesidents witbfn the PGA West
development hWwlivs Defimdantff DorpwyK Mods and Pwdds W& Due to the alteration oftbe
exterior Patio Arm of the property at 55-051 Riviera, La Quints (which it -defieed in the
development's Condominium Plan (Comt ExbtM #12,23, and 24) as part of the sapsaft intuest for
the propoM at 55-01 RivicM IA Qulnt4CalfIWuW and the adjamt: Common Am end Lindtad
Common Area doscribed In AWdv TV, Section 5 of the CURS, by Defendants DanpM IL MO*
andPatzidaMork, the owun ofthaproperty d 55-031 Riviera, LaQuints, CaHfbvoi*,ih=hwbeen
a failese to provide ntdntansace which has created a sump mulition resulting in water WWI= ad
2
A
s,)
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damage to the rero lot line avail and other parts of the reddem d 55T RiviaM LA Quints,
California, owned by Plaintiffs Lewis Wyatt and Dr. Gail Wyatt. The sump condition remns a
continuing threat: of flooding damage and dcsuucdon Am water flow and costal baa s condouiag
nuissnoe. Plaintiff PGA Residential Association, Ina was relieved of say obligstfon to MAintsin the
descnlW Limited Common Area byvMw of Article N, Section 5(8) and Article At, ftd=
of the CCM dna the ado= of Defatdants Dempsey K. Mork and Patricia Mode in ntodifyiog and
altering said Limited Common Area. In doing the Wnp Yd fi nth i enin, Deftdants Dempsey IC
Mork and Patricia Mork have breathed Article N, Section 5 (by failing to ataintain the subject
Limited Common Areaj, Article VD, Section 12 (bymai bWng a atusancaL and Article lx, Section
3 (by fisiliog to maintain the property at 53-051 Riviera, La Quina, Caiifania, including the MO
Area and the limited Common Artie adjacent thaatoj. PlsintMGA West Reaidaattal AswdsAon,
inc, has %andingunder Chit Code section 1368.3 to enforce tba CC&FU againa M&Odarsts Dempsey
L Morn and Patricia Mork;
2. With regard to the Third Cance of Action for Wunctive Relief, the Coutfs decision
is that Plaintiff PGA West Residential Association, Int. has prevailed on the merits of trial sad •is
=titled to a permanent injunction. Plaintiff PGA Wet Rr sideatial AssodWon, lac• will be
irreparably and continually harmed if the Court does not inane a pamenent f thmetion. Pewilary
compensation would not aflvrd adequate relief. Def ndants Dempsey K. Motk and Patrick Mott,
and all those acting to eoneert with them, ars ordered to not interfere with Pbbdff PGA West
Resldential Association, lrte.'s right under Article V, Section 3(G) ad Article M Section 4of the
CC&Rs to oatar the pmpertyat 55-051 Riviam La Quinta, CaliferMa, in order to re modist a the AM&
wail of tate property at 55069 Riviera La Quints, Cahforu* and to provide satiflcaent dcainaga ofthe
laved adjacent to said north wall to avoid fmthar water intrusion. In compliance with the provisions
of this injunctive relief, Defihndmta Dempsey K. Mork and Patricia Mork shall p wide reasonable
aoc ess to allow Plaintiff PGA Wart Rasidentlai Association, Inm and/or its sgmta or designee:; to
perfonn tics Mpaim Plaintiff PGA west Residential Association, Inc. natal" be required to provide
reasonable notice to Defendants Dempsey K. Mork and hWck Mode prior to said repairs being
3
IP�pawdj $euasa,.r O! Deet�tee
Y
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xfr:
wWatabm DdWdants Dempsey L Mork stud Patrida Mork and all lbws actimgt in serosa with
them, and their grata, detigewm subdequad pardmacrs, &snips, and hens ate enf oined fiom aiotring
thus draiasge or land in the described ares;
3. Witb reward to the ]Four* CWeof A don forDwUng cry Re1144 thaCoud's decWOO
it that Plaintiff PGA Wat Reaidotiel A wdaioe, t= is entitled to eaforce agsioat Dd odsnta
Dempsey K. Mork and Patrlda Matic the tams of the CC&U Ddffeidsnts DanpscY IL -MG& sad
Pabridd Mork mast reimburse PiaiWffs for coats and aster M text i kaki to ealbrcement of ON
CCdtRs ptusawa to Ctvtt Cods section 1334, et seg.;
4. With regard to the Fifth Cance of Action for Negligenoe. the Court's decision is that
PkindffPGA Wal Residential Association, Inc. bas pm= byaprepooderanoeofthedvidaaoethst
it has suiTe W damages and inji y due to the negligence of DdWaats Dempsey K. Mork and
pa dcia Mork. Defendants Dempsey K. Mork and Patricia Mork had a 190 duly to vonfomi to s
standard of conduct to povtoot PlaintiffPOA Wad Residc*g Assodada%far Ddmdants Dempsey
K Mork sad Patricia Mork failed to meet+this st8edwd of ooadmct by creating a SUMP condition is
Ove Patio Area and Limited Common Area of the P"ty at 55-05i Riviera, La Quints. Cslifw"
resnithag in water iattasion sad damage to the zao lot line north wail, wbidt is common ata that
PlaindffPOA West Residential Amoashm Inc. bas st"agratdct CMI Code section 1368.3, and
other parts of the mddanoc at 55-069 Riviaa, La Qai its, CIditiunia, owltod by Dr. Lewis Wyatt sad
Dr. sed! WywL Defendaats DempsayK Mork sad Patricia Mork'sfhilure was the proximate or Ind
eras of the cesaitimg injury to mid common area aorta wall, and Plaintiff POA Wadi Raidwtial
Aesodadon, ins. was damsged;
S. With mprd to the Sbah Caws of Action for Nniaeac% the Court's dscWQA is that
PIaintilfPOA West Reddeittial Aasooiation, tae: bas proven by s preponderance of titre evideaoe that
s continuing auidamce =is" as a rosalt of the eosr&Wog threst of floodiap &arra fie ad destruction
from water flow t3vm the propcety at 55-001 RiviM Ia Qaint % Csliforaia, owned Owcontrolled
4
lPreptMaO) Stau■at tNDselrioe
i
03/ . 04/2j)JI 15:01 7604363442 PAG9 09
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byDcf=dmb DempwylL Me* mdPabids Mark, whkhku brim fa withPisindffiLmimysm,'
WOO Wyawsumofthepiwaq SIS5-069 Rivierk L&Q4mWC.WJ&m*andP1mizrdffFGA Wert'
Residential Association, Isla, use ofth000mmon wMawth W&H ofodd property. SMnuisance shall :
bo abated forthwith byVef=x1=bDempsey K Mork and Patricia mmipmant to dwpmvwo=,j
of WMWIM Mief oudim in the COWVs daddon
pXSF* 2, above;
6. With xvWd to the issue of damagm for the ArV4 Fft and Sbuh Cmin of Accton,,
the Court's decision is that Plaintiff FGA West Residootiai Association, bm is oudded to raoover
special dwnqm for wall and drainage Toots In the mmut of 525,592.37, and inycodpdve coo
in the aniount of 116,000; and
7. with nVard to the issue of attomWe foe and oosti6 ft Court's decision is diet;
PlaintiMPOA West Rcsidentifil AswdaflM Inc. is the rrmiling party in this action and is witted.
to attorney's ran and costs pars uard to the mm of the CC&Rs as contraitual mmqls fees and,
pumat to QW1 Cods section 1354, et aq.
AMOEMENT IS HEREBY ORDMUD TO BE OMMEV with mpft to the Cumplaim
Tiled by Flalutiff PGA West Residential Associadon, hm an J* 29, 2008 as ibUow&*
I. Pl"MA West Residartitl Awodadm Inc. woover &a Dcftdjmto Dmpsey
IL Mark and Patride Mork the s= of $41.592.34 as xp=W dmmm madned by Plaintiff PGA ;
West Residential Association. Ino.;
2. PlaffigMA West Rasideadd Association, Ina rmova Am Defaidents
amnsq's Am and was 6mmmod Lq:.�::
aeftewtem Of the Ccfts�
propmd) SUINN" OrDoddem
03104/2811 MR. 7604363442 PAGE A
0
I FlabiMPGA Wed Raddeudal AMdlti^ In& nw from Dvfmftm DmpsW
ammys few and mats to �e
2 IL Mork and P&Mcia Mm* the =a of S k le =for aw,
.3 Incarrad to fatore; ofommait of the CC&Rs;
4
5 4. PLdntiffPGA West Raidenfial Anocixti lora r fim Deflowlana Danyaq
6 K Mo* and Patricia Mork the wn of S for ONW-8 6" and Costs
7 bi=nvd In this action;
9 S. Plaintiff PGA Wee Residential Association, Inc recover fim Defendants DevVW
to IQ Mork and Petricis Moftost-judgmatinteree atthe Iqd raw from dtodsteofentryofludgincat;
I1 and
12
13 6. Defatdams DcnVM X. Mork and PafticiaMW4 and all then actinS in concert with
14 than, areardered to not interfere with PlaintiffMA WastResidentM AisodatUm, Inc.'* richt under
15 the CC&Rs to enter the pmpo* at 55-051 RivieN IA Qubta, California in *4w to, remediate the
16 north wall ofthe property it SS -W Riviers 14 QWutn. Califmis, and to provide suffickut drain3p
17 of the land adjacent to said north wall to avoid farther water Intrusion. In ou"Hance. with the
18 provisions of this Injuncdve relief, Defendants Dempsey L Mork and Patricia Mori; shall provide
19 rasonable soc= to allow Plaintiff PGA Went Redfttid AmdadM Inc. and/or its agents or
20 deMguca to perform the repairs, PlaintiffPGA Won Residential Anodation, Im shall be requited
21 1 to provide removable notice; to Defendants Dempsey K. Mo* and Patricia Mork prior to aid
22 being undertaken. Defendants Dempsey K. Motif and Patricia Mwk and all those acing In concent
23 with than, and their agents„ dM&wM subsequad purchasers, assigns, and hairs arm aort from
241 alterIng the dr at land in the I desmW'sirm
25 —226 Data: Al C�
or 1118 Supedor
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Ip"Pendi statawatM
DAVID M. PETERS
KEENAN A. PARKER
JAMES R. McCORMICK JR.
STEPHEN M. KIRKLAND
CHRISTINA M. BAINE DEJARDIN
JOHANNA R. DELEISSEGUES
TRACY M. FULLER UNKOWSKI
MICKEY JEW
KYLE E. LAKIN
LAURIE F. MASOTTO
LAURIE S. POOLE
ZACHARY R. SMITH
OF COUNSEL
SIMON J. FREEDMAN
TER5'& FREEDMAN, L.L.P.
ATTORNEYS AT LAW
191 CALLE MAGDALENA, SUITE 220
ENCINITAS, CAUFORNIA 92024
-Tel: (760) 436-3441
Fax: (760) 436-3442
June 23, 201j'
Via First Class Mail
and Certified Mail, RRR
Kirk Hermann, Esq.
2029 Century Park East, 14th Floor
Los Angeles, CA 90067
Charles Shelton, Esq.
Law Offices Of Charles Shelton
73726 Alessandro Drive, Suite 103
Palm Desert, CA 92260
Re: PGA WEST Res. Assoc. Inc, v. Mork ("Mork I")
Our File No: 1194
Dear Counsel
mail@hoalaw.com
www.hoalaw. com
PALM DESERT OFFICE::
43100 COOK STREET
SUITE 202
PALM DESERT, CA 9221:1
Tel: (760) 773-4463
Fax. (760) 773=0919
The Association now has a judgment which includes an injunction enjoining your clients from
interfering with the drainage repairs recommended by the Association's experts, and further
enjoining them from altering the repaired condition in any way without express approval from the
Association.
We are informed that your clients have vacated the subject property. Nonetheless, we do nd simply
want to barge onto the property to conduct the repairs without giving you notice of our intent to do
SO.
I do nog `have a date for the repairs as yet, but it will .probably b in about 30 - 45 days, depending
upon contractor scheduling.
Kirk Hermann, Esq: Ai
Charles Shelton, Esq.
June 23, 2011
Page -2-
I would appreciate it if one or both of you (or, with your permission, Mr. Mork) would contact the
undersigned to discuss scheduling and other issues.
Very truly yours,
PETERRP
AN, L/Lt_
Keenanker
cc: Board of Directors
David C. Werner, Esq.
KAP:ds
G:U 1 U 1941KARmork - wyatt consolidaNNAItfterrnann shelton Ol.wpd
ti.