Impairment of Right to Counsel in Community Association Disputes

Introduction

Prior to 2013, there was uncertainty as to whether a community association could exclude a homeowner’s attorney from attending a board of directors meeting, a committee meeting (such as an architectural committee, fines committee, or rules committee), or to participate in internal dispute resolution on behalf of the owner pursuant to Civil Code sections 5900-5920.

Some associations took the position that since the associations were private organizations, participation was limited to owners, which prevented the owner’s attorney from attending these events. Other associations recognized cases such as Damon v. Ocean Hills Journalism Club, 85 Cal. app. 4º 468, 475 (2000) and Cabrera v. Alam, 197 cal. app. 4th 1077, 1087 (2011), holding that an association is, in effect, a “quasi-governmental entity parallel in almost all cases to the powers, duties, and responsibilities of a municipal government,” and therefore, counsel for a homeowner may attend association meetings. .

Other associations struck 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 SB Liberty case

In SB Liberty, a homeowner was involved 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 for all purposes as the directors would if they were personally present. presents. SB Liberty, 217 cal. app. 4th at 277. The special power of attorney was signed by the owner, registered 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 court of first instance denied the motion for precautionary measures and the court of appeal confirmed it. Id. at 274-75. The appeal court held that only members of the association were entitled to attend board meetings. Id. at 281. Since the owner’s attorney was not a member of the association, the owner’s attorney was not entitled 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. DNI at 283-84. The appellate court also held that a board of directors has the authority to determine how to conduct its meetings and is authorized to prevent a non-member from attending and participating in such meetings. Id. at 284. Ultimately, 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. owner’s or membership rights. ID.

Now, based on SB Liberty, associations have the authority to prevent the owner’s attorney from attending or participating in business 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 designate 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 different facts or legal arguments than 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 owner’s right to counsel in civil disputes.

Finally, footnote 11 in SB Liberty may provide some relief to a homeowner who wishes to be represented by an attorney 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 do not express any opinion with respect to the question, which is not presented here, of whether an attorney appointed by a member of the LLC of the Association as administrator of the LLC would be entitled to appear at open sessions of meetings of the Board in name of the LLC as your representative. It is not disputed that attorney Lepiscopo was not a member or manager of SB Liberty.

ID number 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. app. 4º 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