Condo Court

Ms. Warner, who lived in an Orange County apartment complex, suffered from multiple spine, muscular and nervous system ailments. Ms. Warner’s doctor believed that a dog’s companionship would lessen the anxiety and depression caused by her painful conditions.  Consequently,  Ms. Warner obtained Nellie,  a mixed  Labrador Retriever/German Shepherd.

When Ms. Warner tried to renew her lease, the apartment complex owner denied her request because Nellie exceeded a newly-imposed weight limit for pets.  Ms. Warner replied that Nellie was a companion dog, not a pet, and the owner demanded that Ms. Warner provide proof.

Ms. Warner produced a doctor’s certification confirming that Nellie’s  companionship was medically necessary, but the apartment owner nevertheless proceeded to terminate her tenancy based upon violation of the pet weight limit. Since Ms. Warner could no longer care for Nellie, she felt she had no choice but to euthanize her dog.

California’s Department of Fair Employment and Housing (DFEH)  filed a lawsuit against the apartment complex owner for disability discrimination. In November 2009, the apartment owner settled the lawsuit by paying Ms. Warner $298,333.  The DFEH explained the basis for this settlement by stating: “Companion animals are not pets. The Fair Employment and Housing Act requires housing providers to modify pet policies so that individuals with disabilities who need companion animals can have them.”

In August 2007, the Association board members were elected to one year terms. In April 2008, the entire board was recalled, and in June 2008 an election was held to choose the board members who would serve out the remaining two months of the recalled board members’ terms – i.e., until August 2008.

However, the Association refused to hold the regularly scheduled board election in August, arguing that the board members elected in April 2008 should continue serving until July 2009.

In the December 17, 2009 unpublished opinion of  Samii v La Villa Grande Homeowners Assn,  the Court of Appeal held that if an association refuses to hold an election as required by the governing documents, any Association member can simply file a petition in Superior Court seeking a quick (summary) order that the election be held. This simple procedure is authorized by Corporations Code section 7510(c), which states that such a summary court order is warranted if the Association “fails to hold a written ballot for a period of 60 days after the date designated therefore.”

In the December 22, 2009 case of Turner v. Vista Pointe Ridge HOA, the California Court of Appeal held that an Association’s communications in connection with a member’s architectural application and its efforts to enforce the CC&Rs are not always protected speech.

In Turner, the Association granted approval for the Turners to make changes to their property and construct a new casita, provided that the casita did not exceed a certain height. During construction, the Turners decided to increase the height of the casita by about a foot or a foot and a half without first obtaining a variance from the Association.

When a neighbor threatened to sue the Association because the casita obstructed his view, the Association unsuccessfully attempted to convince the Turner’s to comply with the original approval and the architectural standards. Eventually, the Association levied a $23,732.40 reimbursement assessment against the Turners.

The Turners filed a lawsuit against the Association. The Association responded by filing a SLAPP motion to dismiss the complaint, arguing that all of its activities to enforce the CC&Rs and architectural standards were constitutionally protected free speech.

The appellate court rejected the Association’s arguments and allowed the Turners to proceed with their case. The court explained:

In this case, there is no indication that the acts in question were undertaken in furtherance of the right of petition or free speech. The causes of action, as described in the complaint, arose out of the Association’s purported unwillingness to grant a variance, demand that money be paid in exchange for a variance, demand that various disputed improvements be removed, levy of a reimbursement assessment, failure to comply with the CC & R’s, and demand that the Turners pay to remove a tree located in the common area.

It is true that certain Association demands were made in writing. But the mere fact that the demands were put in writing did not convert the Association’s acts in connection with CC & R’s enforcement into acts in furtherance of the right of free speech.

A CC&R provision required that all homeowners comply with certain County zoning ordinances.  An owner (who was also the chairperson of the Association’s architectural committee) placed structures on his property which violated those County ordinances. After the Architectural Committee failed to enforce that CC&R provision against its chairperson, the adjacent homeowners filed a lawsuit.

Can the architectural committee chairperson be sued for breach of fiduciary duty?

Yes.  In the unpublished December 17, 2009 decision of Wagner v Bike, the California Court of Appeal held that the adjacent homeowners could proceed on their cause of action against the architectural committee’s chairperson for breach of fiduciary duty “for failing to enforce or selectively enforcing the CC&R’s or other governing documents in his capacity as a member or chairman of the Architectural Committee.”