Introduction
Prior to 2013, there was uncertainty about whether a community association could exclude an owner’s attorney from attending a board meeting, committee meeting (such as an architectural committee, fines committee, or rules committee), or to participate in an internal dispute resolution on behalf of the owner pursuant to sections 5900-5920 of the Civil Code.
Some associations took the position that since the associations were private organizations, participation was limited to homeowners, which prevented the homeowner’s attorney from attending these events. Other associations recognized cases like Damon v. Journalism Club of Ocean Hills, 85 Cal. app. 4ยบ 468, 475 (2000) and Cabrera v. Alam, 197 cal. application. 4th 1077, 1087 (2011), who hold that an association is, in effect, a “quasi-governmental entity parallel in almost all instances to the powers, duties, and responsibilities of a municipal government,” and therefore attorney for an owner may attend association meetings. .
Other associations took a middle ground, allowing the owner’s attorney to attend some but not all of these meetings. For example, an association may allow an owner’s attorney to attend a board meeting, but not a committee meeting. Another association might allow an owner’s attorney to attend a board or committee meeting, but not participate in internal dispute resolution. In 2013, the status quo changed with the decision of SB Liberty, LLC v. Isla Verde Ass’n, Inc., 217 Cal. app. 4th 272 (2013).
The S.B. Liberty case
In SB Liberty, a homeowner was embroiled in a dispute with the association over the association’s disapproval of the owner’s architectural plans to renovate the owner’s residence. The owner provided his attorney with a special power of attorney, which gave the attorney the right to attend and participate in board meetings on his behalf as fully and to all intents and purposes as the directors would if they were personally present. present. S.B. Liberty, 217 cal. application. 4th at 277. The special power of attorney was signed by the owner, recorded in the County Register, and delivered to the association. The owner’s attorney then notified the association of his intention to attend the next board meeting. The association refused to allow the owner’s attorney to attend the meeting.
The owner filed a complaint against the association requesting, among other things, an injunction to allow the owner’s attorney to attend board meetings. The trial court denied the motion for injunctive relief and the appellate court upheld it. Id. at 274-75. The appeal court held that only members of the association had the right to attend meetings of the board of directors. Id. at 281. Since the owner’s attorney was not a member of the association, the owner’s attorney did not have the right to attend or participate in board meetings. Id. As to the special power of attorney, the appellate court held that an owner is not permitted to transfer membership rights to another person, including the right to attend or participate in board meetings. ID at 283-84. The appeal court also held that a board of directors has the authority to determine how to conduct its meetings and is empowered to prevent a non-member from attending and participating in such meetings. Id. at 284. Finally, the appellate court held that the association’s refusal to allow the owner’s attorney to attend the meeting did not cause the owner any great or irreparable harm because such exclusion was not shown to interfere with the First Amendment. of the owner or membership rights. ID.
Now, based at SB Liberty, associations have the authority to bar the owner’s attorney from attending or participating in matters before the association. This would include board meetings, committee meetings, and internal dispute resolution meetings.
Reform Suggestions
The California legislature should enact legislation to strike down SB Liberty through a new statute that specifically provides that an owner in an association may appoint an attorney to attend and participate in meetings before the association’s board of directors or committees, or in internal dispute resolution procedures.
In the absence of legislative reform, the only other alternative may be another court case presenting facts or legal arguments different from those of SB Liberty. This could be a situation where the owner is not physically, intellectually or emotionally capable of presenting their case to the board of directors. A different legal argument may be based on the association’s impairment of the homeowner’s right to counsel in civil disputes.
Finally, footnote 11 in SB Liberty may provide some relief to an owner who wishes to have an attorney represent them at association meetings. In SB Liberty, the plaintiff was a limited liability company (“LLC”) and its manager was one of the owners. Footnote 11 suggests that there may be a different result if a manager of the LLC were the attorney for the owner:
We express no opinion with respect to the question, which is not presented here, of whether an attorney appointed by an LLC member of the Association as administrator of the LLC would be entitled to appear at open sessions of Board meetings at name of the LLC as its representative. It is not disputed that lawyer Lepiscopo was not a member or administrator of SB Liberty.
DNI at 285 n.11.
Conclusion
It is well established that even in civil disputes, a person has a “fundamental” and “important” right to counsel of their choice. Taheri Law Group v. Evans, 160 cal. application. 4th 482, 491 (2008). In SB Liberty, the court’s decision appears to undermine this right. SB Liberty should no longer be the law in California.
Copyrighted and reprinted with permission of the Orange County Attorney