Introduction
These excerpts cover Jill's knowledge of the slopes and French drain at purchase, the HOA's response to the slope failure, the reversal of responsibility, the impact on her home, and why she filed the lawsuit. All are taken directly from the official court transcript.
Q = Craig L. Combs, HOA's Attorney
A = Jill Mann, Plaintiff / Homeowner
A = Jill Mann, Plaintiff / Homeowner
Key Testimony
Was Jill told the slope was the HOA's responsibility?
Yes. "It was HOA business." When Jill was notified by the HOA that there was an issue with the slope, she was told it was HOA business. She was not asked to do anything. The HOA took control of the situation, and she followed their direction.
Did you ever seek any authorization to make any repairs on the slope after the incident?
When I was notified by the HOA that there was an issue, I was told it was HOA business.
The question in Special Interrogatory No. 40 was, "Why did you not make repairs to the slope after the incident?"
The HOA -- Paul Elsesser told me it was HOA business. I was not asked to do anything. I was told it was HOA business, and -- and the HOA took control of the situation. So I did not need to request to do repairs or -- and such.
Did Jill ask the HOA permission to repair the slope herself?
No. "because I didn't break the slope." The HOA's attorney asked why she hadn't sought permission to repair the slope herself. Her answer was five words.
So have you asked the Association for permission to perform any work on the slope at any point in time since the incident?
No.
Why not?
Because I didn't break the slope. I didn't do any work on the slope that is a factor in its failure.
Any other reasons why you did not ask the Association for permission to perform any work on your slope since the incident?
Because the Association has taken control of the slope for as far back as I know. And I believe the drain to be a factor. It's faulty. I believe it contributed to the incident, and I was not responsible for that.
Did Jill know a French drain had been installed on her property?
No. The HOA installed the French drain in 2019, three years before Jill purchased the property. It is underground and was not visible from the surface. She only learned it existed after the slope failed.
When was the first time you became aware that the French drains existed?
After the incident, when I called two owners before to see if she knew anything about the lot, the slope.
Were the French drains observable and you just didn't know they were there, or were they hidden?
A French drain is under the ground, so you can't see it.
As written, the French drain behind Lot 139 was installed in 2019; is that accurate?
Yes, it's accurate. It is accurate that the French drain behind the retaining wall on Lot 139 was installed in 2019. And it was installed by the Association in 2019 without -- it was -- yeah.
Were homeowners allowed to do anything on the slopes?
No. Homeowners were told to stay off. The HOA's landscapers handled everything on the slopes. In Jill's words, the slopes had been "taken over by the HOA, maintained." That was common knowledge in the community.
Well, the slopes typically have been HOA-controlled. They don't -- my understanding, from the short time that I lived there, was you stay off the slope. You don't go on it, you don't do anything to it, you don't plant it, you don't touch it. So...
Is it any kind of common area?
Yeah. I -- that is the -- I believe that the slope is an easement because it has been, in a sense, taken over by the HOA, maintained. We have been told to stay off it, not do anything with it. So it -- yeah. So there you go.
Who took charge of the repairs when the slope failed?
The HOA. The HOA had already called an engineer before Jill even knew there was a problem. For three months, they managed the entire situation through board member Paul Elsesser.
The HOA board contacts that I was working with had indicated for three months that they were taking charge of the project. They had hired an engineer, and I was listening to what they were -- the HOA's expert was saying.
Who was the HOA's expert, to your understanding?
GeoTek.
And who else from the Association made those statements to you?
Most of my conversations were with Paul Elsesser. He was assigned -- he was on the board and assigned as the slope contact, chairperson.
How did Jill learn the HOA was reversing its position?
The HOA hired an attorney to send her a letter. On July 11, 2023, after three months of managing the response, the HOA sent Jill a letter stating the slope was her responsibility and requesting she arrange repairs at her own expense. No prior conversation, no warning.
So isn't it true that, in this letter dated July 11, 2023, the Association, through counsel, requested from you that you make repairs to the slope on Lot 139?
On July 11th, your office did write me that letter.
And it's fairly construed as a request that you make the repairs to Lot 139 at your own cost and expense; is that fair to say?
On July 11th, yes.
So the Association did make a request to you to make repairs on your slope. But you did not make any repairs to your slope, did you?
The HOA had taken responsibility after the incident, and I abided by what was requested of me at that point.
Has the slope been fully repaired, and how has it affected Jill's daily life?
No. The repair is not complete and Jill is in a holding pattern. She cannot make improvements to her home, and the situation has changed how she uses her own backyard. When the contractor performed the work, they overtook her entire yard.
Prior to the incident to date, I had been leery of making any home improvements because the work is not complete. I don't want to add any more structures, furniture, things, because I have -- knowing that the slope is not fully repaired.
When they did the repair, they overtook my entire yard. The only way to get at the slope. So for me to make any permanent changes might impede future work. I'm in a holding pattern until this is resolved.
I don't recall if I did any laying out or -- I walked in my backyard to -- it's my backyard. I have to sometimes. It changed -- the incident definitely altered the leisure time that I spent in my backyard. It changed my normal life and how I operated.
And how did it change that?
It was uncomfortable to be out in the backyard with -- knowing that that was there, seeing people come and go, lack of privacy. It was -- that's what I'm referring to by "uncomfortable."
Did other homeowners understand that the HOA controlled the slopes?
Yes. It was common knowledge. Homeowners were told to stay off the slopes, and all slope maintenance was handled by the Association.
Homeowners have been told it's common knowledge in the community that homeowners were to stay off. You don't do anything. So anything that had to do with the slope and its maintenance was taken on by the Association.
Was Jill at her home when the slope failed?
No. She was in Massachusetts. Jill learned about the slope failure a day or two after it happened, by phone. The HOA had already contacted GeoTek before she was even aware of the problem.
When did you first become aware of slope failure?
A day after. A day or two after it happened. I wasn't there. I was in Massachusetts.
And by the time you became aware, if I understand your testimony, the Association had already called GeoTek; is that correct?
Correct.
Did Jill notice any problems on the slope before the failure?
Yes, she photographed them the day before she left. On April 11, 2023, Jill photographed broken sprinklers on the slope that were spraying into the air instead of the ground. She reported the issue and left for Massachusetts the next day.
And do you remember when, approximately, that you took those pictures?
It was April 11th. That was the question.
So prior to the incident?
Correct.
So clearly, you were not in Massachusetts at that time?
Oh, right. April -- okay. That's a good point. Yep.
And did you ever make a request for the HOA to make repairs to that?
So that was April -- I remember -- well, it was April 11, because that was your specific question about the broken irrigation lines of April 11. And now I recall that I was going to -- in regard to that, I was going to Massachusetts the next day. So April 12th is when I went to Massachusetts.
Why did Jill file a lawsuit against the Association?
Because she believes the Association was negligent. The HOA voluntarily took ownership of the slopes, and when things went wrong, it was their responsibility to make it right.
My reason for filing the lawsuit is that I believe the Association was negligent in the work that they did, and it was a factor -- it was a factor in the failure itself.
Okay. So knowing now that the entirety of Lot 139 is yours, and no portion of Lot 139 is common area, do you still believe it is appropriate to ask your fellow Association members to pay for the repair of your slope?
Yes, I do.
And why is that?
Because I believe the Association is -- was negligent in what they did to the slope.
Did Jill pick the contractor or approve the repair cost?
No. The HOA managed the entire vendor selection process through Paul Elsesser. Jill was not asked to participate in any of these decisions.
And who else from the Association made those statements to you?
Most of my conversations were with Paul Elsesser. He was assigned -- he was on the board and assigned as the slope contact, chairperson.
And who --
Pretty much -- pretty much through Paul. The rest of the board didn't really talk to me.
Okay. And what did Paul say to you? You don't have to give exact quotes, but just what did he tell you that the Association was going to do, if anything?
Well, there was lots of things he said the Association was going to do. Like I said, originally -- originally, he said it was HOA business. They had already called an engineer to come in before I even knew there was an issue.
Do the CC&Rs assign slope responsibility to the HOA?
Yes, Section 6.14. When asked to find a provision assigning slope responsibility to the HOA, Jill turned to Section 6.14 and read it into the record.
6.14. Do you want me to read it? Would that be helpful?
Sure.
"The owner shall permit free access by owners of adjacent adjoining lots and the Association to slopes and drainageways located on such owner's property when such access is essential for the maintenance of permanent stabilization on said slopes or maintenance of the drainage facilities for the protection and use of property other than on the lot which the slopes or drainageway is located."
To me that indicates that the HOA maintains and is responsible for the slopes for their stabilization, and we, as homeowners, allow them free access to do their thing. That's my feeling. And I have abided by that and allowed the HOA access.
When did Jill return to California after the slope failure?
Around May 17-18, 2023. She flew back to be present when GeoTek was conducting exploratory digs. She had not been planning to return at that point.
For how long, approximately, were you in Massachusetts before you returned home after the slope failure?
I flew back from Massachusetts to be there when -- I believe it was May 17th and 18th, if I remember correctly. It was when GeoTek was doing exploratory digs. I don't think I was there before that because I wasn't even expecting to come back at that point.