Impairment of the right to an attorney in community association disputes

Introduction

Before 2013, there was uncertainty as to whether a community association could exclude the property owner’s attorney from attending a board meeting, committee meeting (such as an architecture committee, a fines committee, or a 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 the owners, preventing the owner’s attorney from attending these events. Other associations recognized cases such as Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 475 (2000) and Cabrera v. Alam, 197 Cal. App. 4th 1077, 1087 (2011), who hold that an association is, in effect, a “quasi-governmental entity that in almost all cases has the powers, duties and responsibilities of a municipal government” and, therefore, the owner’s attorney can attend association meetings. .

Other associations took a middle ground, allowing the owner’s attorney to attend some of these meetings, but not all. For example, an association may allow the 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 meeting 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. 4 ° 272 (2013).

The SB Liberty case

At SB Liberty, a homeowner became 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 granted his attorney a special power of attorney, which gave the attorney the right to attend and participate in board meetings on his behalf to the fullest extent and for all purposes and purposes that directors could do if they were present personally. SB Liberty, 217 Cal. App. 4th at 277. The power of attorney was signed by the owner, recorded in the County Register, and given 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 seeking, among other things, a mandatory court order to allow the owner’s attorney to attend board meetings. The trial court denied the motion for preliminary injunction and the appeal court affirmed. Id. At 274-75. The court of appeal held that only members of the association had the right to attend the 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 had no right to attend or participate in meetings of the board of directors. Id. Regarding the special power of attorney, the court of appeal held that an owner cannot transfer membership rights to another person, including the right to attend or participate in meetings of the board of directors. Id. At 283-84. The appeals 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 those 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 on SB Liberty, associations have the authority to prevent 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.

Renovation suggestions

The California legislature must enact legislation to invalidate SB Liberty through a new statute that specifically states that the owner of an association may appoint an attorney to attend and participate in meetings before the association’s board of directors or committees, or proceedings. internal dispute resolution.

Without legislative reform, the only other alternative may be another court case that presents different legal facts or arguments than SB Liberty. This could be a situation where the owner is not physically, intellectually, or emotionally capable of presenting his case to the board of directors. A different legal argument may be based on the association’s impairment of the owner’s right to an attorney in civil disputes.

Finally, footnote 11 in SB Liberty may bring some relief to a homeowner who wants an attorney to represent them at association meetings. At 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 an LLC manager were the owner’s attorney:

We do not express any opinion with respect to the question, which is not presented here, whether an attorney appointed by a member of the Association LLC as manager of the LLC would be entitled to appear in the open sessions of the Board meetings at name of the LLC as its representative. It is indisputable that Attorney Lepiscopo was not a member or manager of SB Liberty.

Id. At 285 n. eleven.

Conclution

It is well established that even in civil litigation, a person has a “fundamental” and “important” right to have an attorney of their choice. Taheri Law Group v. Evans, 160 Cal. App. 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 printed with the permission of the Orange County attorney

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