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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88152
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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In the past our association security would give a 24 hour notice

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In the past our association security would give a 24 hour notice on a car and then tow the vehicle even though our CC&R say they can tow the vehicle within an hour. We are residents and I just drove my son's car down from college. Our gate security guard waived me into our community without giving me a parking pass. He did the same for my older son who was driving a rental car. My son's car is registered at the association office, however, he did not have a registered bar code on his car. The security company arbitrarily tows cars. My neighbors even told the security company that the car he was towing was a residents and they still towed the car. Since there has been a precedent set by giving 24 hour warnings in the past and the fact that the security guard waived me into the community without giving me a pass, does the association have to reimburse me for the tow charges if I take them to small claims court? If so, what legal precedent do I have to site. I feel that I have been discriminated and harassed by the association and the security company.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

Since there has been a precedent set by giving 24 hour warnings in the past and the fact that the security guard waived me into the community without giving me a pass, does the association have to reimburse me for the tow charges if I take them to small claims court?

Possibly, yes. It becomes very subjective here. Please read on.

If so, what legal precedent do I have to site

You may have a cause of action for promissory estoppel. Promissory estoppel can be defined as:

"A promise which the promisor should reasonably expect to induce action or 905*905 forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires."

US Ecology, Inc. v. State, 28 Cal. Rptr. 3d 894 - Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2005, citing Prosser.

Perhaps another way to define it is that the elements of a promissory estoppel claim are "(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance." (Laks v. Coast Federal Savings & Loan Assn. (1976) 60 Cal.App.3d 885, 890, 131 Cal. Rptr. 836.)

In plain English, if the Association's security company continuously allowed you in without enforcing the requisites, and, waived you in AGAIN but then towed you, you may have a claim for the costs of the tow and storage and rental of vehicle in the meantime, because you REASONABLY relied on their promise and action and did not anticipate that the vehicle would be towed.

They would of course argue likely that regardless, the vehicle was towed in accordance with the rules.

Then, the Judge would decide on what is fair, balancing that the vehicle may have been towed thin the rules versus their misdirection to you which caused it to be towed.

Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

What about the precedent giving 24 hour notice in the past? And what about towing my car and not towing other cars that were in violation? They are not consistent with the rules in the CC&R's. If they are not consistent with the rules in the CC&R's then does that invalidate the rules?

Expert:  Ely replied 1 year ago.
Hello friend,

Thank you for your follow up.

What about the precedent giving 24 hour notice in the past?

That may be part of the promissory estoppel argument. So the argument would be not only what actions they have taken or not taken before, but what they have stated, what notices they have given, etc - it is a subjective matter.

And what about towing my car and not towing other cars that were in violation? They are not consistent with the rules in the CC&R's. If they are not consistent with the rules in the CC&R's then does that invalidate the rules?

That is not part of the argument, however. Unlike the government which may be sued for selected enforcement of laws against certain individuals but not others, private entities may choose to enforce or not enforce their laws against others. Unless you can show a pattern of discrimination solely based on race, religion, gender, etc, then this is not a part of the argument.

This does not mean that it cannot be mentioned, but simply that it will not hold much water in the argument itself.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Thanks for the info. Last question, if I sue in small claims court what amount can I sue for? The amount of the tow ($220) and damages? If so, what kind of damages?

Customer: replied 1 year ago.

I forgot to ask, do I include the security company as well as the HOA in my lawsuit?

Expert:  Ely replied 1 year ago.
Hello,

No problem. First of all, understand that this is not a slam-dunk case. In fact, I had to "stretch" the doctrine here. The Judge may be bemused a little by the application if one chooses to pursue this, but, it is an argument to be considered. So do expect an uphill battle. I did not want to state that this is a slam-drunk case. However, it is the best argument one may have in such a scenario.

As for amount - small claims court does not give punitive damages. Ergo, the amount would be:

1) costs of filing;
2) cost for payment to get the vehicle out; and
3) any reasonable cost for a rental before the vehicle is retrieved.

No, one only sues whoever towed the vehicle, so the HOA.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88152
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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